AI Structured Summary
Not yet generated for this judgment
Judgment
ORDER
‘Heard’, the Learned Counsel for the ‘Petitioner’/ ‘Appellant’, in IA No. 719 of 2021, in Company Appeal (AT) (CH) (Ins) No. 347 of 2021. Also ‘Heard’, Mr. PV. Vinod, the Learned Counsel appearing for the ‘Respondent’/ ‘Resolution Professional’. According to the ‘Petitioner’/ ‘Appellant’, the ‘Petitioner’/ ‘Appellant’, is not a party to the ‘Application’, filed by the ‘Respondent’, before the ‘Adjudicating Authority’/ ‘National Company Law Tribunal, Kochi Bench’, and as such, is not in possession of ‘Certified Copy’, of the ‘Impugned Order’, dated 29/01/2023, made in IA/224/KOB/2020, in IBA/49/KOB/2019.
The Learned representing Counsel for the ‘Petitioner’/ ‘Appellant’, points out that there has occasioned a delay of ‘290 days’, in preferring the instant Company Appeal (AT) (CH) (Ins) No. 347 of 2021, in respect of the ‘Impugned Order’, dated 29/01/2021, in IA/224/KOB/2020, in IBA/49/KOB/2019, passed by the ‘Adjudicating Authority’/ ‘National Company Law Tribunal, Kochi Bench, Kerala’.
The Contention of the Learned Counsel for the ‘Petitioner’/ ‘Appellant’, is that the ‘Respondent’, by placing reliance on the ‘Order’, dated 29/01/2021, had pegged the claim of the ‘Petitioner’/ ‘Appellant’, just 17% of the entire admitted Account. Also, it is mentioned, on behalf of the ‘Petitioner’/ ‘Appellant’, before this ‘Tribunal’, that, it was informed about the ‘approval’ of the ‘Resolution Plan’, as soon as, was made to be aware of, they had obtained the ‘web copy’ of the ‘Order’, dated 29/01/2021 and hence the ‘Petitioner’/ ‘Appellant’, has preferred the instant ‘Appeal’, with a ‘Delay of ‘290 days’, which is neither ‘wilful’ nor ‘wanton’, but due to the aforesaid reason. Hence, on behalf of the ‘Petitioner’/ ‘Appellant’, a ‘Prayer’, is made for allowing of IA No. 719/2021 in Company Appeal (AT) (CH) (Ins) No. 347 of 2021, by this ‘Tribunal’ in the ‘Interest of Justice’.
Conversely, it is the ‘Submission’ of the Learned Counsel for the ‘Respondent’/ RP, that the instant ‘Appeal’, is barred by ‘Limitation’, as per Section 61 of the Insolvency and Bankruptcy Code, 2016, because of the latent and patent fact that the ‘Impugned Order’, came to be passed on 29/01/2021, and in reality, the ‘Appeal’, was filed on 15/12/2021, with a delay of ‘290 days’.
The Learned Counsel for the ‘Respondent’, points out that the ‘Petitioner’/ ‘Appellant’, had admitted that it had not filed any ‘Application’, for obtaining a ‘Certified Copy’ of the ‘Impugned Order’, and without filing of the ‘Certified Copy’ of the ‘Impugned Order’, in terms of Rule 22 of ‘National Company Law Appellate Tribunal Rules’, the instant ‘Appeal’, filed by the ‘Petitioner’/ ‘Appellant’, is per se, not maintainable, in the eye of ‘Law’.
The Learned Counsel for the ‘Respondent’/ ‘Resolution Professional’, refers to the decision of the Hon’ble Supreme Court in Civil Appeal No. 3327 of 2020, in the matter of V. Nagarajan Vs. SKS Ispat and Power Limited (LL 2021 SC, 581), where in, the Hon’ble Supreme Court, had observed at Paragraph 22, as observed and held as under:
Para 22: “On the second question, Rule 22(2) of the NCLAT Rules mandates the Certified Copy being annexed to an appeal, which continues to bind litigants under the IBC. While it is true that the tribunals, and even this Court, may choose to exempt parties from compliance with this procedural requirement in the interest of substantial Justice, as re-iterated in Rule 14 of the NCLAT Rules, the discretionary waiver does not act as an automatic exception where litigants make no efforts to pursue a timely resolution of their grievance. The Appellant having failed to apply for a Certified Copy, rendered the Appeal filed before the NCLAT as clearly barred by limitation.”
The crystalline stand of the ‘Respondent’, is that the instant Appeal is not maintainable, in ‘Limine’, without traversing upon, the merits of the ‘main matter’/ ‘Appeal’.
In this connection, it is not out of place, for this ‘Tribunal’, to make a pertinent mention that in the ‘Order’, dated 04/11/2022, of this ‘Tribunal’, in IA No. 3349 of 2022 in C.A. (AT) (Ins) No. 1124 of 2022, in Isolux Corson India Engineering & Constructions Pvt. Ltd., through its Liquidator, CA Rajeev Bansal Vs. Shailesh Verma, Erstwhile Resolution Professional of South East U.P. Power Transmission Company Ltd. & 2 Ors., wherein, at Paragraph 22, it is observed as under:
Para 22: “The Jurisdiction of this Tribunal to condone the delay is of only 15 days in addition to period of limitation of 30 days. The delay in filing the Appeal is beyond 15 days after expiring of the limitation, we are unable to condone the delay in filing the Appeal. In result, IA No. 3349 of 2022, is dismissed. Consequently, the Memo of Appeal stands rejected.”
Furthermore, in the ‘Order’ of this ‘Tribunal, dated 26/08/2022, in IA No. 2431 of 2021, in C.A. (AT) (Ins) No. 877 of 2022, between 44 Noida Infratech (Two) Pvt. Ltd. Vs. Enforcement Directorate Kolkata Zone Office & Office & Ors., wherein, at Paragraph 13, it is mentioned as under:
Para 13: “In the present case, the Appeal could have been filed within limitation till 06th June, 2022 and this Tribunal could have condoned onlty 15 days delay. The Appeal having been filed on 04th July, 2022 and delay being beyond 15 days is not condonable. Hence the Delay Condonation Application (IA No. 2431 of 2021) is dismissed. The Memo of Appeal is rejected.”
That apart, in the ‘Order’ dated 19/10/2022, of this ‘Tribunal’ in the matter of Johnson Lifts Pvt. Ltd. Vs. Tracks and Towers Infratech Pvt. Ltd. (vide Company Appeal (AT) (CH) (Ins) No. 370/2022), wherein, at Paragraphs 7 and 8, it is mentioned as under:
Para 7: “Rule 150 of NCLT Rules, 2016 enjoins the ‘Pronouncement of Orders’, by the ‘Tribunal’ Rule 150(3) of the Rules, 2016 ‘speaks’ of furnishing ‘Certified Copy of every Order’, passed by the ‘Tribunal’ to be given to the ‘Parties’.
Para 8: “More importantly, Section 421(3) of the Companies Act, 2013 provides that ‘Every Appeal’ under Sub-Section (1) shall be filed within a period of forty-five days from the date on which a copy of the ‘Order’ of the ‘Tribunal’ is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed. However, a mere running of the eye of the ‘ingredients of Section 61(2) of the Insolvency & Bankruptcy Code, 2016, unerringly exhibits that the said ‘Section’ is conspicuously silent about the ‘words’ a copy of the order is made available to the person aggrieved, etc”.
By and large, if a ‘Litigant’ is ‘not aware’ / ‘Vigilant’, as regards his ‘Right(s)’, he shall explain the ‘Delay’ in issuing, to the subjective satisfaction of the ‘Competent Tribunal’/ ‘Appellate Tribunal’/ ‘Court of Law’. To put it precisely, the ‘Delay’ that requires to be explained, is from the ‘date’, the ‘time was running out’, till the date of preferring of an ‘Appeal’, or a ‘Petition’, as per decision of Hon’ble Supreme Court of India in Ramlal Vs. Rewa Coal Fields Limited, AIR 1962, SC 361.
To be noted that Section 61(1) of the Insolvency and Bankruptcy Code, 2016, envisages filing of an ‘Appeal’, by an ‘Aggrieved Party’, within ’30 days’, from the date of ‘Pronouncement Order’, (vide Section 61(2) of the Insolvency and Bankruptcy Code, 2016) and the ‘Appellate Tribunal’, if sufficient Cause, is exhibited on the side of the ‘Petitioner’/ ‘Appellant’, in not preferring the ‘Appeal’, within ’30 days’ (as per Section 61(1) of the Insolvency and Bankruptcy Code, 2016), has power to condone the same, subject to not exceeding ’15 days’, only in case of being subjectively satisfied as to the reason furnished for the ‘Delay’, in question.
A mere running on the eye over, the ingredients of Section 61(1) and Section 61(2) of the Insolvency and Bankruptcy Code, 2016, unerringly, points out that, in any event, an ‘Appeal’, cannot be preferred by an ‘Affected’/ ‘Aggrieved’ Party, beyond ‘30+15=45 days’ (the outer limit period). There is no power enjoined upon the ‘Appellate Tribunal’, to ‘Condone’ the ‘Delay’, of ’15 days’, of course, after the expiry of ’30 days’, from the date of passing of the ‘Impugned Order’, by an ‘Adjudicating Authority’/ ‘National Company Law Tribunal, Kochi Bench’.
Admittedly, in the instant case, the Impugned Order in IA/224/KOB/2020 in IBA/49/KOB/2019, came to be passed by the ‘Adjudicating Authority’/ ‘Tribunal’, on 29/01/2021 and the ‘Appeal’, was filed by the ‘Petitioner’/ ‘Appellant’, on 15/12/2021, with a ‘Delay’, of ‘290 days’, which is an unacceptable one. In reality, the said delay of ‘290 days’, is not to be condoned, by virtue of the decision of the Supreme Court in Civil Appeal No. 3327 of 2020 in the matter of V. Nagarajan Vs. SKS Ispat and Power Limited (LL 2021 SC 581), as mentioned ‘Supra’. Looking at from any angle, the Condonation Delay Application, IA No. 719 of 2021, in Company Appeal (AT) (CH) (Ins) No. 347 of 2021, is not to be entertained and the same is hereby dismissed , but ‘without Costs’.
In view of the ‘Order’ of ‘Dismissal’, passed by this ‘Tribunal’, in IA No. 719 of 2021, in C.A. (AT) (CH) (Ins) No. 347 of 2021, the main Company Appeal (AT) (CH) (Ins) No. 347 of 2021, is ‘not entertained’ and the same is ‘Rejected’. No ‘Costs’. Connected pending IA No. 720/2021 (For Urgent Hearing), IA No. 721/2021 (To Dispense with), IA No. 722/2021(For Stay) and IA No.1002/2022(To Implead) are ‘Closed’.