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Judgment
ORDER
This appeal is directed against the order dated 19.04.2022 by which an Application filed under Section 9 of Insolvency and Bankruptcy Code, 2016 (in short “IBC”) r/w Rule 6 of IBC (Application to Adjudicating Authority) Rules, 2016 (in short ‘Rules”) by the Operational Creditor (M/s FOWCOMM INC) against the Corporate Debtor (M/s S & J Turnkey Contractor (India) Pvt. Ltd. for initiation of Corporate Insolvency Resolution Process (in short ‘CIRP’) has been dismissed.
The Appellant has filed an Interlocutory Application bearing I.A. No. 892 of 2022 under Section 5 of Limitation Act, 1963 (in short ‘Act’) for condonation of delay. The Application is taken up for hearing at the first instance because until and unless the delay is condoned the Appeal cannot be duly constituted.
Counsel for the Appellant has submitted that the impugned order was passed on 19.04.2022 whereas the appeal has been filed on 22.06.2022. It is submitted that the statutory period of 30 days for preferring the appeal against the impugned order expired on 19.05.2022 and an additional period of 15 days provided under Section 61(2) proviso too expired on 04.06.2022 but the appeal could be preferred on 22.06.2022 after the delay of about 17/18 days.
Counsel for the Appellant has given a chart to us in his written submission to explain as to why the delay has occurred. For the sake convenience, the said chart is reproduced as under:
| Date | Particulars of events/facts. |
| 19.04.2022 | The Ld. NCLT has passed the Impugned Order in CP(IBA) No. 771 of 2020. |
| 22.04.2022 | The appellant through his counsel came to know about the passing of Impugned order. |
| 21.05.2022 | The appellant requested the counsel at Chennai to forward hard copies of the complete company petitioner with annexures to that appeal with annexure can be prepared. The counsel for appellant received the hard copy of complete documents on 21.05.2022. |
| 24.05.2022 | The appellant is based in Tiwan and hence the appeal was prepared along with IAs (application for condonation of delay and permission to place additional documents/balance sheets from 2016 to 2020 of respondent on record.). TGhese appeal and applications/IAs were emailed to appellant with instruction to download the documents and make necessary correction qua the facts and suggestions accordingly. |
| 16.06.2022 | That the counsel for the appellant rec3eived hard copies of the appeal and IAs duly signed by the appellant along with apostilled/notorized affidavits. |
| 22.06.2022 | That the counsel for the appellant filed the complete set of appeal along with Impugned orders and Annexures before the Ld. NCLAT vide Diary No. 516 dt. 22.06.2019. |
Learned Counsel for the Appellant has submitted that after the amendment in IBC, by way of Section 238(A) w.e.f. 17.08.2018, the provision of Section 5 of the Act is also applicable.
It is submitted that there is an explanation for the late filing of the appeal even beyond the period of 45 days which is bonafide in nature, therefore, such delay may be condoned because the Appellant has a good and meritorious case. In support of his submission, he has relied upon a decision of the Hon’ble Supreme Court in the matter of “Sesh Nath Singh Vs. Baidyabai Sheoraphuli Co.” decided on 22.03.2021 to contend that the issue of sufficient cause cannot be adjudicated in a straight jacket formula but has to be considered on the facts of each case. It is also submitted that the Court should be liberal in its discretion in condoning the delay so that meritorious matters may not be thrown out at the very threshold.
On the other hand, Counsel for the Caveator has submitted that, there is no quarrel with the law laid down by the Hon’ble Supreme Court in the case of Shesh Nath (supra) but the facts of this case are altogether different because in the present case there is a delay beyond a period of 45 days in filing of the appeal and even if the Appellant has sufficient ground for not filing the same within a period of 45 days, this Tribunal has no jurisdiction to entertain the Application for the purpose of passing an order in his favour. In support of his submission, the counsel has referred to a decision of the Hon’ble Supreme Court in the matter of “National Spot Exchange Limited Vs. Anil Kholi” reported in AIR 2021 SC 4339.
We have heard learned Counsel for the parties. In order to answer the questions involved as to whether this Tribunal has the jurisdiction to entertain and decide an application for condonation of delay beyond the period of 45 days, it would be relevant to refer to Section 61 of the Code which deals with appeal and delay. Section 61 of the Code is reproduced hereunder:
61. Appeals and Appellate Authority.
(1)Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal.
(2)Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal:
Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days.
(3)An appeal against an order approving a resolution plan under section 31 may be filed on the following grounds, namely:
(i)the approved resolution plan is in contravention of the provisions of any law for the time being in force;
(ii)there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period;
(iii)the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board;
(iv)the insolvency resolution process costs have not been provided for repayment in priority to all other debts; or
(v)the resolution plan does not comply with any other criteria specified by the Board.
1[(4) An appeal against a liquidation order passed under section 33, or sub-section (4) of section 54L, or sub-section (4) of section 54N, may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order.
(5)An appeal against an order for initiation of corporate insolvency resolution process passed under sub-section (2) of section 54-O, may be filed on grounds of material irregularity or fraud committed in relation to such an order.]
Section 61(1) provides that any person who is aggrieved by the order of the Adjudicating Authority can prefer an Appeal to the NCLAT. Section 61(2) says that every appeal preferred under Section 61(1) has to be filed within 30 days before the Appellate Tribunal. Proviso to 61(2) says that the Appellate Tribunal may allow the appeal after expiry of 30 days if it is satisfied that there is a sufficient cause in not filing the appeal in time but such period should not exceed 15 days. There is no other proviso in the Code, which is complete in itself, for the purpose for providing a window for filing the appeal beyond the period of 45 days.
The plain reading of the aforesaid provision that the Appellant has a statutory right without any hindrance to file an appeal within 30 days before the Appellate Tribunal. But in case the appeal is filed by the Appellant, because of sufficient reason, within a further period of 15 days, it can seek condonation of delay in not filing the appeal by filing an Application under Section 5 of the Act. In these circumstances, the judgment relied upon by the Appellant in the case of Sesh Nath Singh (supra) would be helpful to him but when the appeal has been filed beyond the period 45 days, then the decision rendered in the case of “National Spot Exchange Limited Vs. Anil Kholi”(supra) would be applicable by which the Hon’ble Supreme Court has held:
“As per Section 61(2) of the IB Code, the appeal was required to be preferred within a period of thrirty days. Therefore, the limitation period prescribed to prefer an appeal was 30 days. However, as per the proviso to Section 61(2) of the code, the Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing the appeal, but such period shall not exceed 15 days. Therefore, the Appellate Tribunal has no jurisdiction at all to condone the delay exceeding 15 days from the period of 30 days, as contemplated under Section 61(2) of the IB Code.”
In view of the aforesaid facts and circumstances, we have no doubt in our mind that the Appellant has missed the bus by causing delay in filing the appeal beyond the period of 45 days and cannot take the plea of an innocent litigant because it is not the jurisdiction of the Appellate Tribunal to look into the sufficient cause or otherwise while hearing the Application which has been filed under Section 5 of the Act for seeking condonation of delay beyond the period of 45 days.
Thus, in our view the appeal is hopelessly time barred and the same is hereby dismissed.
Since, we have dismissed the Application seeking condonation of delay, therefore, the appeal is also dismissed.