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Judgment
[Per: Arun Baroka, Member (Technical)]
This is an Application bearing I.A. No. 8538 of 2024 in Company Appeal Appeal against the Order dated 02.08.2024 passed by the National Company Law Tribunal, Kolkata Bench (“Adjudicating Authority”). This Order was passed in IA (IB) No. 503/KB/2024 arising out of earlier order dated 22.12.2023 in C.P. (IB) No. 25/KB/2022. The Impugned Order was passed on 02.08.2024 which was a modification of an earlier order dated 22.12.2023 vide which a Resolution Plan for Corporate Debtor was approved by NCLT. Perusal of this order indicates that it was only a correction.
The Appellant claims that there is a condonation of delay of only 11 days in filing this Appeal. The Appellant has tried to give an explanation from para 3(i) to 3(xi) in the APB from pages @28 to 32 in I.A. No. 8538 of 2024 and claims that they did not receive any formal and true copy of the Impugned Order and no Resolution Plan has been supplied to the Appellant till date. Therefore, the Appellant could pursue the Impugned order as late as only on 18.09.2024. And further due to Navratri holidays from 7th October 2024 to 13th October 2024, the Appellant was restrained from approaching this Tribunal during the aforementioned. Accordingly, it claims total number of delays in filing the of the present Appeal to be 11 days, which could be condoned. The Appellant has also filed a Rejoinder in response to the Reply filed by the Respondent on the condonation of delay Application, by which it has further elaborated the explanation provided earlier in the condonation of delay application and has also additionally relied upon a judgment which will be discussed hereinafter.
Briefly, the contention of the Appellant is that it had no knowledge of the contents of the Impugned Order dated 02.08.2024. This Order was communicated by the RP vide its letter dated 16.08.2024 through e-mail, but it did not contain the copy of the Resolution Plan as also the copy of orders. Appellant claims that it came to know of the email dated 16.08.2024 on 19.08.2024 when the Appellant had gone through the spam folders of email. It is also claimed by the Appellant that the Impugned Order has not been uploaded on the NCLT, Kolkata website till date. It is claimed that Impugned Order was not pronounced in the open court which can be concluded from the perusal of the cause list dated 02.08.2024. Appellant further claims that the RP vide its email dated 16.08.2024 had not attached the order approving the Resolution Plan. Also, it did not provide the Resolution Plan to the Appellant. The Appellant vide its letter dated 29.08.2024 requested the RP to justify the formula whereby their claim of about 0.3% was admitted. On 05.09.2024, the Appellant once again sent an email to RP seeking details, as asked for earlier on 29.08.2024. Later on, when no response was received the Appellant through its Advocate in Guwahati, applied for certified copies of the Order dated 22.12.2023 and 02.08.2024, and the Appellant got these Orders on 09.09.2024. In the meantime, the RP also sent an email to the Appellant on 07.09.2024 forwarding the copy of the Order dated 22.12.2023 and order dated 02.08.2024. It is claimed by the Appellant that the order attached with the email dated 07.09.2024 was strike off and not clear. On 23.09.2024, the Appellant once again requested the RP to supply the copy of the Resolution Plan approved by the CoC. It is claimed by the Appellant that NCLT Rules, 2016 prescribe that the orders should be pronounced in open court and the period of limitation under Section 61 of the Code should be counted from the date of pronouncement followed by the date of the upload on NCLT website. In the present factual matrix, the Order dated 02.08.2024 was neither pronounced nor uploaded on the NCLT website and the Appellant got to know about the contents of the order dated 02.08.2024 on 18.09.2024 when the Appellant received the order from his advocate. It claims that therefore the limitation for filing of appeal under Section 61 of IBC would commence from 18th September 2024 i.e. the date of knowledge of the contents of Order. It is also claimed that even if we take 09.09.2024 as the date of knowledge in the present factual matrix, the limitation of 30 days ends on 10.10.2024 and as per the NCLAT calendar there were holidays from 08.10.2024 to 13.10.2024. Therefore, as per Section 4 of the Limitation Act, if limitation expires on a day when the court is closed then the Appeal may be preferred on the day when the court opens. Hence, the limitation would start from 14.10.2024. If calculated from 14.10.2024 there is a 11 days delay, which is within condonable period.
We have heard Learned Counsel for both the parties and perused the material on record.
For better appreciation of the case in hand, the important dates are noted as below:
| Event | Date | |
|---|---|---|
| Date of Knowledge of order dated 02.08.2024 as claimed by the Appellant | A | 16.08.2024 |
| Date of Supply of order by RP to the Appellant | B | 07.09.2024 |
| Date of Application for Certified Copy | C | 06.09.2024 |
| Date of Receipt of Certified Copy | D | 09.09.2024 |
| Date of Filing of the instant Appeal | E | 26.10.2024 |
We find that the Impugned Orders were passed on 02.08.2024. Without going into the claim of the Appellant that the Order has not been uploaded on the NCLT website till date or not, from the materials placed on record, we find that there has been email which was issued by the RP to the Appellant on 16.08.2024 indicating about the Order. This email is not denied by the Appellant. Appellant claims that the said email did not contain the order dated 02.08.2024, as there was no attachment of the Order to that effect. Thereafter, there is another admission of the knowledge of the Order when it claims that this email was in the spam folder of the Appellant and it learnt about the email of 16.08.2024 on 19.08.2024. We find that subsequent exchange of correspondence, which the Appellant was having with the RP as well as its Advocate on Record in Guwahati and Kolkata were subsequent to the passing of the Impugned Order, which was already in the knowledge of the Appellant on at least by 16.08.2024. We further note that this Impugned Order was a modification order of the substantive order, which was issued on 22.12.2023 for passing the resolution plan. From the material on record, we find that there is no whisper on appealing the Order of 22.12.2023 and all the correspondence relates to Appeal with respect to modification order, which is not a substantive order. There is no material on record to show that the Appellant has chosen to file an appeal against the approval of Resolution Plan. We find that the Appellant has not been vigilant and not taking timely action in pursuing the Orders passed by the Adjudicating Authority on 22.12.2023 and even in this Appeal has filed beyond condonable period.
Now we further examine various dates to look into any further merits of the condonation of delay, basis the claims of Appellant, as provided in his APB and also the Rejoinder in response to the Reply filed by the Respondent on the condonation of delay application. As per materials on record, the crucial dates are tabulated as per following format for our analysis:
| Event | Date | |
|---|---|---|
| Date of Knowledge of order dated 02.08.2024 as claimed by the Appellant | A | 16.08.2024 |
| Date of Supply of order by RP to the Appellant | B | 07.09.2024 |
| Date of Application for Certified Copy | C | 06.09.2024 |
| Date of Receipt of Certified Copy | D | 09.09.2024 |
| Date of Filing of the instant Appeal | E | 26.10.2024 |
| No. of days taken to apply for certified copy after knowledge | (C-A) | 21 Days |
| COD - Possible Scenarios (whether more than 30 +15 days or not) | ||
| Time taken to file the appeal from the date of knowledge | (E-A) | 71 Days |
| Time taken to file the appeal from date of order receipt | (E-B) | 49 Days |
| Time taken to file the appeal from receipt of order reduced by time taken for certified copy | (E-D) | 47 Days |
From the above table, we find that even in the best-case scenario in last row, there is a delay of 47 days. We have gone through the justification provided by the Appellant. There is no sufficient cause to explain the delay in filing the Appeal, when the Appellant had known about the Orders by at least 16.08.2024. Moreover, this order was a modification order and the substantive order was already issued on 22.12.2023, whereby the Resolution Plan of the Respondent was approved by the NCLT. The subsequent order dated 02.08.2024 was only a modification order correcting some inadvertent errors which had crept in due to over sight. The Appellants had not preferred any Appeal against the Order of 22.12.2023 and strangely only modification orders are being assailed by the Appellant. The material on record don’t indicate any steps taken by the Appellant after the Adjudicating Authority had passed substantive order on 22.12.2023.
Section 61(2) of the Code binds the jurisdiction of the Appellate Tribunal to condone the Appeal filed after the expiry of 30 days by 15 days. The relevant extract of the provision is as follows:
“61(2) Every appeal under sub-section (1) shall be filed within thirty days 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.”
The Appellant also relies upon the judgment of Hon’ble Supreme Court in Sanjay Pandurang Kalate vs. Vistra ITCL India Ltd., (2024) 3 SCC 27, which held as follows:-
“….
16.From the above discussion of law, it is clear that the date on which the limitation begins to run is intrinsically linked to the date of pronouncement. The question that arises in the facts of the present case, therefore, is when is an order deemed to be pronounced.
….
18.The above provisions of the NCLT Rules, 2016 make a clear distinction between the "hearing" of an appeal and the "pronouncement" of the order. Rule 150(1) provides that after hearing the parties, the order may be pronounced either at once or soon thereafter, as may be practicable, but not later than thirty days from the final hearing. Further, Rule 151 indicates that a member of the Bench may pronounce the order for and on behalf of the Bench. When the order is pronounced, the court master shall make a note in the order sheet to that effect. The language of the above rules indicates that the pronouncement of the order is necessary and cannot be dispensed with.
19.In the present case, the cause-list for 17-5-2023 placed on record by the appellant indicates that the case was listed for admission and not for pronouncement. Further, on a specific query of the Court, it is not in dispute between the counsel for the appellant and the respondent, that no substantive order was passed on 17-5-2023 by NCLT. In these circumstances, limitation would not begin to run on 17-5-2023 which was the date on which hearings concluded. As no order was passed before 30-5-2023, there was no occasion for the appellant to lodge an application for a certified copy on 17-5-2023. Time for filing an appeal would commence only when the order appealed from was uploaded since prior to that date no order was pronounced.”
[emphasis supplied]
This may not be of any help to the Appellant as the present case is clearly distinguishable. The Appellant itself admits to have the knowledge of the Impugned Order at the worst case as on 16.08.2024. Moreover, this was a modification order and substantive order was issued on 23rd August 2023, which the Appellant had not challenged. The Appellants arguments that limitation for filing of Appeal under Section 61 of IBC would commence from 18th September 2024 i.e. the date of knowledge of the contents of order cannot be accepted as per existing law, which prescribes strict compliances with the timelines in the IBC proceedings. Further the claim of the Appellant that they were restrained from filing the Appeal due to Navratri holidays of NCLAT from 08.10.2024 to 13.10.2024 is devoid of any merit as by 8th October 2024, 45 days had already elapsed from the date of the issue of Order on 2nd August 2024. Presuming that they had come to know about the Order on 16th August 2024, even then the 45 days had elapsed by 8th Oct 2024. In any case, the Appeal was filed on 26th October 2024, much beyond 45 days. Therefore, the argument for taking advantage of the Navratri holidays is absurd and is of no avail to the Appellant. In conclusion, we do not find that the Appellant has been vigilant in pursuing their Appeals. In the facts and the circumstances of the case, therefore, we do not find sufficient cause for condoning the delay of more than 15 days.
Orders:
Accordingly, we do not find any merit in the application for condonation of delay as sufficient cause has not been shown. Condonation of delay is, therefore, not granted. Accordingly, application for condonation of delay bearing I.A. No. 8538 of 2024 is dismissed. Consequently, the present Company Appeal (AT) (Insolvency) No. 2270 of 2024 is also dismissed.