Colliers International (India) Property Services Pvt Ltd vs SAS iTower Private Limited

Oral Judgment : Justice Sharad Kumar Sharma, Member (Judicial):

The Appellant, is an Applicant to the proceedings under Section 9 of the I & B Code, 2016, which has been rejected by the impugned order of 29.01.2025 that was passed in CP (IB) / 187 / 9 / HDB / 2024.

The Company Appeal has been preferred with the delay of 391 days as it has been reported by the Registry. In accordance with the provisions contained under sub-section (2) of Section 61 of the I & B Code, 2016, which prescribes for preference of an Appeal aggrieved against any order passed by the Ld. Tribunal, it prescribes for a strict restrictions on the aspect of limitation as per the language used under the proviso to sub-section (2) of Section 61 of the Code. It contemplates that, its 30 days time period, which has been prescribed for preferring of an Appeal against the impugned order and if there are sufficient cause, for not being able to filed the Appeal within the aforesaid prescribed period i.e., of 30 days, it could be preferred under the further condonable period of 15 days thereafter, for the language used under the proviso, it places a specific bar that the condonable period cannot be extended beyond 15 days meaning thereby, beyond 15 days, the period of delay does not call for consideration to be condoned within an ambit of the Appellate Tribunal owing due to there being a statutory bar.

In the Appeal in question, if we go through the impugned order, the Appellant was an Applicant to the proceedings under Section 9 of the Code. The records shows that the Appellant had never applied for obtaining the Certified copy of the order within the period of limitation given under the I & B Code, 2016, rather, it shows as under:

Hence, when in the proceedings under Section 9 of the Code, which was preferred by the Appellant, itself he has not filed any application for even procuring the Certified copy or the order within the period of limitation, the delay of 391 days, being in-ordinate and not being satisfactorily explained does not deserves to be condoned.

Even otherwise also, if we go through the Condone Delay Application, preferred by the Appellant, being IA No. 627 / 2026, the reason given therein was that, since the impugned order of 29.01.2025, rejecting his application was on the ground that the Appellant had not been able to substantiate his case in the absence of there being any documentary evidence being placed on record.

Besides, since there being a finding recorded that there was no document, which was filed by the Appellant demonstrating as to how and when the takeover occurred nor were any legal / financial documents produced establishing the Respondent’s liability.

But the reason, which has been taken by the Appellant, as contained in Para III (iv) & (v) for seeking condonation is that the Appellant preferred a Recall Application and the said Recall Application was pending consideration before the Ld. NCLT and if at all, the Appellant had given a challenge to the impugned order of rejecting Section 9 Application by filing of an Appeal, it would have multiplied the proceedings.

First of all, under law the Appellant ought not to have been conscious about the effect of multiplicity of the proceedings, because, that could not have been taken as to be the reason for the Appellant to justify for not preferring the Appeal within the prescribed period of limitation.

The reason for filling of a condonation of delay is that, when he filed a Recall Application, notices were issued on the same and thereafter, the Respondents were taking adjournments to file objections to the Recall Application and therefore, considerable amount of time was consumed on that account. Filing of a recall and the Respondents seeking time for filing an objection, in itself cannot be a reason to justify non-preference of the Appeal by the Appellant within the period of limitation as prescribed under the proviso to sub-section (2) of Section 61 of the I & B Code, 2016.

The fact that the Tribunal had called for an objection on the Recall Application and that process consumed time, in itself, cannot be a reason to condone the delay, that has chanced in preferring the Appeal and that too particularly when under the special statute, when no such recall application even in the exercise of its inherent power is maintainable in respect of an order, which has been passed on merits after hearing the parties, which has been invoked by the Applicant as a substitute to a Review Application.

Pendency of a recall, which is in the shape of a review of order passed on merits, after hearing the Appellant and which is not permissible under law, because, recall cannot act as a camouflage for review of an order passed on merits to reject a Section 9 Application, cannot be taken as a ground to override the aspect of limitation.

Though, not necessary, but still at this juncture itself, we would feel it apt to point out that the recall was preferred by the Appellant on the ground that subsequent to passing of the impugned order on 29.01.2025, they had discovered certain new documents in order to override the finding recorded in the order of 29.01.2025 rejecting the application. Recall on basis of discovery of new documents is impermissible under law.

This concept of filing of a recall application based upon a subsequent discovery of documents, is not acceptable in the eyes of law, as it would be amounting to calling the Tribunal to revisit the order passed on merits, which is not the scope open under Section 61 of the Code.

Hence, the delay of 391 days, being in-ordinate and well beyond the prescribed period as under the proviso to sub-section (2) of Section 61 of the Code, cannot be condoned, that too particularly when the Appellant himself has applied for obtaining the Certified copy of the order itself at a much belated stage only by filing of an application on 10.03.2026 and hence, the Application IA No. 627 / 2026 will stand rejected.

Accordingly, the instant Company Appeal being Company Appeal (AT) (CH) (INS) No. 223 / 2026, would too stand dismissed on being barred by limitation.