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The East India Distilleries and Sugar Factories Ltd. Vs. the Tinnevelley Sarangapani Sugar Mills Co. Ltd., in Liquidation by Its Official Liquidator, G.J. Arthur and anr. - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtChennai
Decided On
Judge
Reported in4Ind.Cas.872
AppellantThe East India Distilleries and Sugar Factories Ltd.
RespondentThe Tinnevelley Sarangapani Sugar Mills Co. Ltd., in Liquidation by Its Official Liquidator, G.J. Ar
Cases ReferredR. Wall v. J.E. Howard
Excerpt:
.....the companies act. - - the court will, however, exercise the power only upon good cause shown, as otherwise the rule of limitation made would be of no effect. if an appellant through no fault of his own were unable to file his appeal within the period provided by section 169, there would, in my opinion, be good grounds for the exercise by the court of its power to grant an extension of time. similarly, if the appeal was filed in time but it was not possible for the court to serve the notice within the period of three weeks, there might, if no negligence could be imputed to the appellant, be good ground for extending the time for service of notice. if the time available after the filing of the appeal was too short to allow of the notice of appeal being served, the petitioners might..........arise for decision. the first is as to the time within which an appeal under section 169 must be filed. notice of appeal has, under the section, to be given by the court, within three weeks from the date of the order appealed against. no such notice would, however, be given by the court unless the appeal had been actually filed. it necessarily follows, in my opinion, that the appeal itself must be filed within three weeks from the date of the order appealed against. this was also the view taken by davies, j. in lakshminarasayyah setti v. venkanna setti 25 m. 576.4. the second question is whether the appellant can demand that the time requisite for obtaining a copy of the order appealed against be excluded from the period of three weeks within which notice of appeal must be given, and.....
Judgment:
ORDER

1. This is an application under Section 139 of the Indian Companies Act VI of 1882 for extension of time for giving notice of appeal to the respondents. The grounds on which the application is based are that the order appealed against was passed on the 8th July 1908, that application for copy of the order was made on the same date, and that as the copy was not furnished to the appellants' Vakil at Tinnevelly till the 27th July it was impossible to serve the respondents with notice of the appeal within the three weeks allowed by Section 169.

2. Under Section 169 the Court of Appeal has power to extend the time for giving notice. The Court will, however, exercise the power only upon good cause shown, as otherwise the rule of limitation made would be of no effect.

3. Two preliminary questions arise for decision. The first is as to the time within which an appeal under Section 169 must be filed. Notice of appeal has, under the section, to be given by the Court, within three weeks from the date of the order appealed against. No such notice would, however, be given by the Court unless the appeal had been actually filed. It necessarily follows, in my opinion, that the appeal itself must be filed within three weeks from the date of the order appealed against. This was also the view taken by Davies, J. in Lakshminarasayyah Setti v. Venkanna Setti 25 M. 576.

4. The second question is whether the appellant can demand that the time requisite for obtaining a copy of the order appealed against be excluded from the period of three weeks within which notice of appeal must be given, and within which the appeal itself must be filed. This point is settled by R. Wall v. J.E. Howard 18 A. 215 which decision I am prepared to follow.

5. As was held there, whether or not it is necessary to file a copy of the order appealed against along with the appeal memo, Section 12 of the Limitation Act, has no application, and the appellant cannot claim that the time requisite for obtaining the copy be excluded from the period of three weeks. This, however, is not necessarily a hardship. If an appellant through no fault of his own were unable to file his appeal within the period provided by Section 169, there would, in my opinion, be good grounds for the exercise by the Court of its power to grant an extension of time. That, I imagine is, one of the very cases to which the power to extend the time was intended to apply. Similarly, if the appeal was filed in time but it was not possible for the Court to serve the notice within the period of three weeks, there might, if no negligence could be imputed to the appellant, be good ground for extending the time for service of notice.

6. The appeal in the present case was filed on the 3rd August, i.e., after the expiry of the period of three weeks. Notice of the appeal was not served till the 27th August. The reason given for the delay is that copy of the order appealed against could not be obtained in time. Now I find that copy was applied for on the 8th July, the date on which the order was made. Stamp papers were called for on the 17th, but were not deposited till the 21st July. No explanation for this delay of four days is offered, and it must be counted against the petitioners. The copy was ready on the 24th July, but was not taken delivery of till the 27th July. Again, there is no explanation for the delay, and the same result follows.

7. It is thus clear that had the petitioners been diligent they could have obtained their copy in the ordinary course, i.e., seven days earlier than they did, and this would have left them ample time for the due filing of the appeal. If the time available after the filing of the appeal was too short to allow of the notice of appeal being served, the petitioners might have had a good case for asking for extension of time. But I do not think that the petitioners, who failed through their own negligence to file the appeal in time, are entitled to any indulgence.

8. I, therefore, dismiss the petition with costs.


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