Employees Provident Fund Organization vs Mr. Bhrugesh Amin & Ors.

[Per; Justice Rakesh Kumar Jain (MJ)]

This Order shall dispose of an Application bearing I.A. No. 611/2021, by which the Appellant/Applicant has prayed for Condonation of Delay of 470 days beyond the period of 30 days in filing of the Appeal.

The Appellant has filed this Appeal being aggrieved of the Order dated 17.10.2019 on 01.03.2021. The Appeal has been filed alongwith an Application for Condonation of Delay of 470 days beyond the prescribed period of 30 days. Counsel for the Applicant has submitted that it was not a party to the proceedings and was never informed about the Impugned Order. It is further submitted that the Impugned Order and approval of Resolution Plan came to his knowledge in the month of March, 2020, but during this period there was a Nationwide Lockdown due to Covid–19.

It is further submitted that the Hon’ble Supreme Court took Notice of this situation in a Suo Motu Writ (Civil) No.3/2020 and vide its Order dated 23.03.2020, extended the period of Limitation with effect from 15.03.2020 till further Orders. It is further submitted that the Appeal has been filed in the extended period of Limitation permitted by the Hon’ble Supreme Court but still the Application has been filed for Condonation of Delay of 470 days beyond the period of 30 days from the date of knowledge.

On the other hand, Counsel for the Resolution Professional (`RP’) has submitted that if 30 days is counted from 17.10.2019 (Impugned Order) then it would come to an end of 17.11.2019 and if 15 days more is to be counted then it would be over by 20.12.2019, whereas the Order has been passed by the Hon’ble Supreme Court in March 2020, therefore, the Appellant has made up a story of not having the knowledge of the Impugned Order and attributed its knowledge in the month of March 2020, to bring its case within the ambit of the Order passed in Suo Motu Writ (Civil) No.3/2020.

It is further submitted that the Appellant had even raised a question about its claim on 16.01.2020 and if that date is considered to be the date of knowledge, then 30 days would be over on 04.02.2020 and 15 days would be over by 01.03.2020 whereas the Hon’ble Supreme Court has passed the Order on 23.03.2020, extending the period of Limitation with effect from 15.03.2020.

We have heard Counsel for the Parties and perused the record with their able assistance.

Section 61 of the Code deals with the Right of Appeal. Section 61 is being reproduced as hereunder:

As per Section 61(1) given a Right of Appeal to any person who is aggrieved against the Order of the Adjudicating Authority, for the purpose of challenging the same before the Appellate Tribunal, but the Legislature has fixed a period of 30 days in Section 61(2) for the purpose of filing the Appeal under Section 61(1). However, in case the Appeal is not filed within the statutory period of 30 days provided under Section 61(2) a further period of 15 days is provided for the said purpose provided the Applicant/Appellant, filing the Appeal, satisfies the Appellate Tribunal that it could not file the Appeal in time because of a sufficient cause. However, in no case the period of 15 days can be extended by the Appellate Tribunal.

In the present case, the Impugned Order was passed on 17.10.2019 and in the ordinary course of business, the statutory period of 30 days stood expired on 17.11.2019 and 15 days would come to an end on 02.12.2019. As a matter of fact, the Limitation had already expired much earlier than the Order was passed by the Hon’ble Supreme Court in Suo Motu Writ (Civil) No.3/2020 extending the period of Limitation with effect from 15.03.2020.

Counsel for the Appellant has taken the plea that it did not know about the Impugned Order. The said Order was uploaded on the website on 05.11.2019. The period of Limitation of 30 days had expired on 05.12.2019 and 15 days thereafter would have expired on 20.12.2019. Thus, even then the period of Limitation had expired much prior to 15.03.2020.

Looking from another angle, as argued by Counsel for the Respondent, the Appellant itself questioned its claim on 16.01.2020 which means that they had the knowledge about the Order dated 17.10.2019 and if period of 30 days is to be counted from 16.01.2020 then it would expire on 16.02.2020 and 15 days would expire on 01.03.2020 again much earlier than the Order of Hon’ble Supreme Court dated 24.03.2020 which was made operative from 15.03.2020.

Thus, looking from any angle the Application filed by the Appellant is not even within a period of 15 days. Moreover, we do not find that any sufficient cause has also been assigned by the Appellant for the purpose of Condonation of Delay.

Hence, the Application is hereby dismissed.

Since, we have dismissed the Application by an Order of even date which has been separately recorded while dismissing the Application for Condonation of Delay, the present Appeal is also not found to be duly constituted and thus the same is hereby dismissed.