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Judgment
O R D E R
Per: Justice Rakesh Kumar Jain:
This appeal is directed against the order dated 06.12.2022 passed by the Adjudicating Authority (National Company Law Tribunal, Division Bench-II, Chennai) by which I.A.(IBC)/1343(CHE)2022 filed in MA/122/2021 in CP/759/IB/2018 has been dismissed.
In brief, Phoenix ARC Pvt. Ltd. filed an application under Section 7 of the Code bearing CP/759/IB/2018 against St. John Freight Systems Limited (Corporate Debtor). It was admitted on 10.12.2018 and the liquidator herein was appointed as IRP.
Shorn of unnecessary details, the Liquidator filed an application M.A No. 122 of 2021 seeking adoption of swiss challenge method and to adopt proposal -A as the base price. On 11.03.2022, the liquidatorwas allowed to fix proposal -Asubmitted by Global Corp Logistics LLC as the base price and accordingly adopt swiss challenge for sale of the CD as going concern.
Thereafter, the application I.A. No. 1018 of 2022 was filed for approval of the sale of the Corporate Debtor as going concern. The said application was allowed vide order dated 19.01.2023 and the liquidator was directed to disburse the consideration paid by the purchaser as per Section 53 of the Code.
The aforesaid order was challenged by the present appellant by way of CA (AT) (Ins) No. 33 of 2023 alongwith I.A. No. 124 of 2023 by which he sought leave to appeal. The contention of the Appellant is that the offer made by the Appellant was more than the value offered by the purchaser before the liquidator and his proposal dated 08.11.2021 to purchase the CD as going concern is much beneficial to the stakeholders committee and economy at large. This application i.e. I.A. No. 124 of 2023 ultimately dismissed vide order dated 17.03.2023 and as a result thereof, the appeal was also dismissed.
The present appeal has been filed against the order dated 06.12.2022. This order disposed of I.A. No. 1343/CHE/2022 as infructuous. This application was not pursued by the Appellant as no one had appeared on its behalf and the court passed the following order:-
“IA (IBC)/1343/CHE/2022 in MA/122/2021 in CP/759/IB/2018
None appears on behalf of the Applicant.
It is seen that MA/122/2021 was disposed off vide order dated 11.03.2022. IA (IBC)/1343/CHE/2022 has been filed in main MA/122/2021. Since MA/122/2021 has already been disposed off on 11.03.2022, this application has become infructuous and stands disposed off.”
The Appellant then filed an application 18 of 2022 for restoration which was dismissed on 24.01.2023 with the following order:-
“Ld. Counsel MR. Pravin appears on behalf of the Applicant. Ld. Counsel Mr. H Mayan appears on behalf of the Respondent.
It is submitted by the Ld. Counsel for Applicant that he is appearing on behalf of Dr. S. Jackson, the Applicant herein.
Ld. Counsel for Applicant states that the subject matter of the Application has become infructuous. His statement is taken on record.
Accordingly, this application is disposed of as infructuous.”
The present appeal is directed against the order dated 06.12.2022 and filed on 04.02.2023. The period of 30 days, as prescribed under Section 61(2) of the Code, counted from 06.12.2022 expired on 05.01.2023 and further period of 15 days expired on 20.01.2023 whereas the appeal has been filed on 04.02.2023. It is pertinent to mention that the impugned order was not passed dismissing the application for non-prosecution rather the impugned order was passed dismissing the application having been rendered infructuous, therefore, the period of limitation would start from the date of order 06.12.2022 in view of the decision of the Hon’ble Supreme Court in the case of V. Nagrajan Vs. SKS Ispat and Power Ltd. &Ors. (2021) 14 SCR 736. The appeal having been filed even after the expiry of further 15 days prescribed under Section 61(2) proviso, is not maintainable in view of a decision of the Hon’ble Supreme Court rendered in the case of National Spot Exchange Limited Vs. Anil Kohli, Civil Appeal No. 6187 of 2019.
Besides, the aforesaid facts and circumstances that this appeal has been filed beyond the period of limitation and not maintainable, the Corporate Debtor has already been sold as going concern subsequent to the order dated 19.01.2023 passed in 1018 of 2022 and thereafter the change in the management has taken effect and the sale proceeds received from such sale have also been distributed to the stakeholders.
Thus, in view of the aforesaid facts and circumstances, there is hardly any merit in the present appeal which is otherwise barred by limitation and hence, the same is hereby dismissed though without any order as to costs.