Eastern Power Distribution Company of A.P. Ltd. vs M/s Laxme Saai Steel Pvt. Ltd. & Ors.

Heard the Learned Counsel for the ‘Petitioner/Appellant’ Mr. Rakesh K Sharma in I.A. No.907/2023 in Comp. App (AT)(CH)(Ins) No.298 of 2023 (delay in refiling the ‘Appeal Papers’).

According to the ‘Petitioner/Appellant’, there has occasioned a delay of 261 days in re-presenting the ‘Appeal Paper Book(s)’, and the reason attributed on behalf of the ‘Petitioner’/‘Appellant’ is that the ‘Registrar’, had pointed out that the documents are to be filed, in this process, there has occasioned a delay of 261 days and therefore, the matter could not be refiled within 7 days from 21.12.2022, as regards to the best efforts of the ‘Petitioner’/‘Appellant’.

Another reason ascribed on behalf of the ‘Petitioner’/‘Appellant’ in I.A. No.907/2023 is that, in respect of `Application’, being filed by a third party, the Full Bench reference was pending before this ‘Tribunal’ and in this regard, that the ‘Petitioner’/‘Appellant’, was not a `Party’, before the ‘Adjudicating Authority’, as witnessed by the outcome of Full Bench’s reference decision and thus, there has occasioned a delay of 261 days, in refiling the ‘Appeal Material Book(s)’, which is neither wilful nor wanton, but due to the aforesaid reasons.

To be noted, the ‘delay in refiling’/‘delay in re-presentation’ (material paper book(s) of the ‘Appellant’), being filed into the ‘Appellate Tribunal’ is the matter between the ‘Petitioner’/‘Appellant’ and this ‘Appellate Tribunal’ and hence the ‘Respondents’, have no ‘say’ in the matter.

This ‘Tribunal’, on being subjectively satisfied, as to the reasons ascribed on behalf of the ‘Petitioner’/‘Appellant’ in IA No. 907 / 2023 (vide paragraph 4 and 5 of the Application), condones the delay of 261 days, in re-presenting the ‘Material Paper Book(s)’ of the instant ‘Appeal’, by taking a pragmatic & rational approach and allows the IA No. 907 / 2023, but without costs.

Heard the Learned Counsel for the ‘Petitioner’/‘Appellant’ in IA No. 964/2023 (Condone Delay Application).

According to the ‘Petitioner’/‘Appellant’, the ‘Impugned Order’ was passed by the ‘Adjudicating Authority’/‘Tribunal’, Amaravati Bench in IA (IBC) No. 133/2022 in CP(IB) 74/7/AMR/2021, dated 16.08.2022, and that the instant ‘Appeal’, came to be filed on 01.11.2022, with a delay of 47 days.

The reason ascribed on behalf of the ‘Petitioner’/‘Appellant’ is that, the ‘Petitioner’/‘Appellant’, was not a `Party’, to the Proceedings before the ‘Adjudicating Authority’/‘Tribunal’ and the ‘Petitioner’/‘Appellant’, was unaware of the ‘Impugned Order’, when it came to its knowledge in the third week of October 2022 that the Proceedings before the ‘Adjudicating Authority’ were initiated on restoration of the electricity of the Respondent. In this process, there has occasioned a delay of 47 days, which is neither wilful nor wanton, but due to the aforesaid reasons.

On behalf of the Learned Counsels’, appearing for the 1^st Respondent Mr. V.V.S.N. Raju, Advocate and Learned Counsel Mr. T. Ravichandran appearing for 3^rd Respondent, brings it to the notice of this ‘Tribunal’ that the delay of 47 days, could not be considered by this ‘Tribunal’, since there is no power under the Provision of Insolvency and Bankruptcy Code, 2016, to condone the delay [beyond 30 + 15 = 45 days), as per Sections 61(1) and (2) of the Insolvency and Bankruptcy Code, 2016.

The Learned Counsels for the Respondent Nos. 1 and 3 prays for the dismissal of the Condone Delay Application (IA No. 964 / 2023).

Admittedly, even though, the ‘Appellant’ was not a `Party’ to the Proceedings before the ‘Adjudicating Authority’/‘Tribunal’, and the fact of the matter is that, there is no provision which enables the ‘Appellate Tribunal’, to condone the delay beyond 30 + 15 = 45 days, under the Provisions of the Insolvency and Bankruptcy Code, 2016.

At this juncture, this ‘Tribunal’ falls back upon the decision of the Hon’ble Supreme Court of India in National Spot Exchange Ltd. vs Anil Kohli, Resolution Professional for Dunar Foods Ltd. & Anr., vide Civil Appeal No.6187 of 2019 dated 14.09.2021, whereby and whereunder, it is observed that a statutory provision of the affairs that the ‘Court’/‘Tribunal’ lacks jurisdiction to condone the delay as prescribed, the limitation cannot be condoned, by invoking Article 142 of the Constitution of India, wherever there is a delay.

Suffice it, for this `Tribunal’, to mention that Insolvency and Bankruptcy Code, 2016, does not permit the delay to be condoned, if the delay in question is more than the outer limit of 30 + 15 = 45 days, as far as the instant case is concerned, admittedly, the ‘Impugned Order’ in IA (IBC) No. 133 / 2022 in CP(IB) 74/7/AMR/2021, was passed by the ‘Adjudicating Authority’/‘Tribunal’ on 16.08.2022.

As per section 61(1) of the ingredients of the Insolvency and Bankruptcy Code, 2016, a person aggrieved in respect of the ‘Impugned Order’ is to prefer an ‘Appeal’, within 30 days from the date of the Order passed by the ‘Adjudicating Authority’/‘Tribunal’.

Section 61(2) of the Code enjoins that the ‘Appellate Tribunal’ is empowered to condone the delay of more than 30 days, of course not exceeding 15 days, provided sufficient cause is explained on behalf of the ‘Petitioner’/‘Appellant’.

In view of the above, the instant Comp. App (AT) (CH) (Ins) No. 298 / 2023 being filed before this ‘Tribunal’ with a delay of 47 days, this ‘Tribunal’ in the teeth of the Judgement in the Hon’ble Supreme Court of India in Civil Appeal No. 6187 / 2019 dated 14.09.2021, in the matter of National Spot Exchange Ltd. vs Anil Kohli, Resolution Professional for Dunar Foods Ltd. & Anr., by taking relevance upon it, is not inclined to allow the IA No. 964 / 2023, because of the latent and patent fact that the I & B Code, 2016, does not mandate that the ‘Appellate Tribunal’, can condone the delay of more than 45 days in preferring the ‘Appeal’.

Looking at from any angle, IA No. 964 of 2023 fails and the same is hereby ‘Dismissed’, for furtherance of Substantial Cause of Justice. No costs.

In view of the Order passed by this ‘Tribunal’ IA No. 964 / 2023 (Condone Delay Application) in Comp. App (AT) (CH) (Ins) No.298 of 2023 is not `entertained’ by this ‘Tribunal’ and the same is hereby `rejected’. No costs. The connected pending IA No. 904 / 2023 (`For Exemption’), IA No. 905/2023 (`Leave to File’) and IA No. 906 / 2023 (`For Stay’) are closed. No costs.