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Judgment
O R D E R
Per: Justice Rakesh Kumar Jain:
17.11.2023: This appeal is filed by the Corporate Debtor under Section 61 of the Insolvency and Bankruptcy Code, 2016 (in short ‘Code’) against the order dated 05.07.2023, passed by the Adjudicating Authority (National Company Law Tribunal, Special Bench-1, Chennai) by which CP/(IB)/197/CHE/2022 filed by the Operational Creditor (Respondent) under Section 9 of the Code r/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 (in short ‘Rules’) for resolution of an amount of Rs. 6,37,76,535.40 (principal) and 2,94,41,258.95 (interest), total amounting to Rs. 9,32,17,794.35/- as an operational debt has been admitted, moratorium has been imposed and IRP is appointed.
This appeal is filed with an application bearing I.A. No. 1097 of 2023, under Rule 11 of NCLAT Rules, 2016 (in short ‘Rules, 2016’) for condonation of delay of 15 days in filing of the present appeal.
As it is well settled that the appeal cannot be heard on merit and decided until and unless delay in filing of the appeal is condoned, therefore, the application bearing I.A. No. 1097 of 2023 has been heard and is being decided by this order.
As per the admitted case of the Appellant, the appeal has been filed on the 45th day i.e. after the expiry of 30 days prescribed for the purpose of filing of the appeal and 14 days thereafter. The only reason given in the application is contained in Para 5, which is reproduced as under:-
“It is humbly submitted that the present appeal application is filed belatedly due to non-availability of the applicant for signing purposes as he was suffering from health-related issues.”
During the course of hearing, we had pointedly asked Counsel for the Appellant as to what was the health-related issues because of which the appeal could not be filed within the prescribed period of 30 days and then further till the expiry of 14 days and appeal is filed i.e. 15th day to which he replied that the signing authority was suffering from fever. It is needless to mention that no evidence has been brought on record to even prove this fact that signing authority was down with fever and that the fever continued for 45 days and was of such a nature the appeal could not have been signed.
We have heard Counsel for the Applicant/Appellant and perused the application and the contents.
Since, the appeal has been filed under Section 61of the Code, it would be apt to refer to Section 61 of the Code which is reproduced as under:-
“Section 61: Appeals and Appellate Authority.
*61. (1) Notwithstanding anything to the contrary contained under the Companies Act 2013, any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within thirty days1 before the National Company Law Appellate Tribunal: Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days.”
For the purpose of this application, we are only concerned with Section 61(1), (2) and proviso to Section 61(2) of the Code. The above provisions have four parts (1) any person aggrieved by the order of the Adjudicating Authority shall have a right of an appeal to the Appellate Tribunal (2) time prescribed for filing such an appeal is 30 days (3) the period of 30 days is further extended to another 15 days but with a rider that the Applicant has to assign a sufficient cause, to the satisfaction of the Appellate Authority, for not filing the appeal within the period of 30 days and (4) the period of 15 days cannot further be extended.
In the case of National Spot Exchange Ltd. Vs. Mr. Anil Kohli, RP of Dunar Foods Ltd., Civil Appeal No. 6187 of 2019 the Hon’ble Supreme Court has categorically held that the Appellate Tribunal has no jurisdiction to condone the delay beyond the period of 15 days. Meaning thereby, if the appeal is filed on 46th days then the application for condonation of delay shall not be maintainable as it would be beyond the jurisdiction of the Tribunal to consider and decide such an application. The Hon’ble Supreme Court has gone to an extent to hold that the period beyond 15 days cannot even be extended under Article 142 of the Constitution of India.
Since, the Code is complete in itself and there are various timelines provided for the completion of CIRP and also Liquidation Process, therefore, the legislature has also prescribed the period of only 30 days in Section 61(2) of the code to file an appeal in terms of Section 61(1). The Legislature did not provide jurisdiction to the Tribunal to extend the period to any extent by condoning the delay of any period in terms of Section 5 of the Act, 1963, in case it is satisfied that there is a sufficient cause with the Appellant for not filing the appeal within the time prescribed rather in proviso to Section 61(2) a period of only 15 days is provided, enabling the Appellant to file the appeal within that period by making out a sufficient cause for not filing the appeal within the prescribed 30 days and sufficient cause has to be to the satisfaction of the Appellate Authority.
Having said that, we have to find out whether the reason given by the Appellant for filing the appeal i.e on 45th day, knowing fully well that if the appeal is filed on 46th days then there would be no chance of even getting an order for condonation of delay, has given a reason that the Appeal has been filed belatedly on account of non-availability of the Applicant for the signing purpose as he was stated to be suffering from health-related issues. It appears to us that the reason assigned by the Appellant is concocted and lame excuse without any foundation and is totally unbelievable because even during the course of hearing, on the asking of the Court, Counsel for the Appellant has submitted that the signing authority was down with fever though no evidence has been brought on record in this regard also. It appears to us that the Appellant has been totally casual not only in filing the appeal but also filing the application for condonation of delay, may be because the appeal filed within the period of 15th day is also considered a matter of right.
In the aforesaid facts and circumstances, we have no other alternative but to hold that the reason given in the application for seeking condonation of delay is not a sufficient reason as it was not beyond the control of the Appellant because this Court is not satisfied with it that the signatory authority could not even sign the appeal within the period of 30 days and in the extended period of 15 days as well.
In view of the aforesaid discussion, the present application is found to be totally bereft of reason and denuded of merit and the same is hereby dismissed.
Since we have dismissed the application for condonation of delay by an order of even date, therefore, this appeal is also hereby dismissed as not been duly constituted.