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Judgment
ORDER
These are two connected Company Appeals.
Comp App (AT) (CH) (Ins) No.459/2023, has been preferred by the Appellant, Governm.’ent of Tamil Nadu, Commercial Taxes and Registration Department, being aggrieved against the order dated 27.07.2023, passed in Application bearing Rst. No.18(CHE)/2023 rejecting his prayer to restore the Application No. MA/665/2019 by setting aside the order dated 04.09.2019 on the grounds of delay.
The connected Comp App (AT) (CH) (Ins) No.460/2023, has been preferred by the Appellant as being aggrieved against the Order of 10.07.2023 passed in his Application IA(IBC)/1103(CHE)/2023 in CP/467/IB/2017, by virtue of which his prayer for condonation of delay of 420 days in filing the Application Rst. No.18(CHE)/2023 was rejected.
It is against these two orders the Appeals have been preferred.
The Comp App (AT) (CH) (Ins) No.460/2023 is accompanied with a Condone Delay Application No.1442/2023, seeking Condonation of 8 days of delay which has chanced in filing the Appeal. After going through the reasons given in the Delay Condonation Application, it seems to be reasonable and not deliberate, Hence the delay would stand condoned and accordingly, IA No.1422/2023 would stand disposed of as allowed.
Brief Facts of the case:
These two Appeals are based upon the peculiar facts and circumstances in itself, for the reason best known to the counsel representing the cause of the Appellant herein. The facts are as follows: -
The Appellant preferred a claim of Rs.4,13,84,141/- vide Form B on 27.07.2017 before the IRP.
IRP/RP informed him by a letter dated 17.12.2018 that the CIRP period has concluded on 11.01.2018, that NCLT has ordered liquidation of the CD and that no claim has been submitted to the liquidator before the due date of 16.02.2018 as prescribed.
Appellant submitted his claims in the prescribed form before the liquidator on 18.01.2019. Liquidator rejected the same being time-barred.
Appellant filed an IA on 09.04.2019 before NCLT, Chennai which cause to be numbered as MA/665/2019 in CP/710/2018. It was listed for hearing on 08.08.2019 and 04.09.2019 and was dismissed for want of prosecution.
The Appellant filed a Restoration Application Rst. App. No.18(CHE)/2023 to recall MA/665/2019 along with a Delay Condonation Application IA/1103(CHE)/2023.
The NCLT dismissed the Delay Condonation Application IA/1103(CHE)/2023 on 10.07.2023 on grounds that no reasons have been assigned for 420 days of delay.
Subsequently on 27.07.2023 NCLT took up the Application Rst. A/18(CHE)/2023 for consideration in CP/467/IB/2017 and dismissed the same as the Condone Delay Application has already been dismissed.
It is the contention of the Appellant that his application MA 665/2019 was wrongly placed in CP/710/IB/2018 and hence he could not track the same and therefore could not attend the hearings and therefore it was dismissed for want of prosecution. As this cannot be attributed to him, his Restoration Application should have been considered favourably. Further the delay of 420 days occurred because of unprecedented Covid situation and even Hon’ble Supreme Court in their suo-motu order in WP(C) No.3 ordered extension of liquidation period from 15.03.2020 to 28.02.2022 and another 90 days from 01.03.2022. Hence his delay of 420 days should have been condoned. He has further submitted that he will be left remedy less if his Appeal is rejected and therefore the Appeals may kindly be allowed.
Now taking up Comp App (AT) (CH) (Ins) No.459/2023, it is seen that order of NCLT dated 27.07.2023 is put to challenge. In this order, the Learned Adjudicating Authority, declined to set aside the order of 04.09.2019 passed by the Tribunal and to allow Restoration of MA/665/2019, as on the grounds that Condone Delay Application in IA/1103/2023 has already been dismissed. Interestingly, the Appellant had filed both Rst.A/18(CHE)/2023 and IA/1103/2023 in CP/467/(IB)/2017 and not in CP/710/2018 in which order dated 04.09.2019 in MA/665/2019 was passed. As such in CP/467/2017 there was no such order dated 04.09.2019 because the said order was passed in CP/710/2018. We feel that if at all any remedial measure was to be resorted to by the Appellant, as against the order of 04.09.2019, it ought to have been in CP No.710/2018 where the order of 04.09.2019 was existing on record and not in CP No.467(IB)/2017, where he had filed the Interlocutory Application.
Admittedly, there is nothing before us to show that the Appellant had adopted any remedial recourse to recall the order of 04.09.2019 by filing an appropriate application in CP No.710/2018 where the order 04.09.2019 was passed. In that eventuality, as far as the order dated 04.09.2019, is concerned which has been passed in MA/665/2019 in CP No.710/2018, that has attained finality and is still surviving on the records of Company Petition No.710/2018. Accordingly, it follows that the said order of 04.09.2019 passed on MA No.665/2019, preferred by the Appellant cannot be recalled in a proceedings of CP No.467(IB)/2017 when the said order itself is a non-existing order on the records of Company Petition No.467(IB)/2017.
The philosophy of recalling of an order in a pending Company Petition is that it can be recalled only when the order which is actually sought to be recalled is an order surviving on the records of the Company Petition in which the Restoration Application is filed. In this case, since the Restoration Application No.18(CHE)/2023, was filed by the Appellant in CP No.467(IB)/2017, where there was no order dated 04.09.2019 on record, there was no occasion for the Learned Adjudicating Authority to recall the order of 04.09.2019 in CP No.467(IB)/2017. Owing to the aforesaid fact and also considering the fact that 420 days of delay has occurred without any reasons assigned to it, the rejection of the recall application on the grounds of delay in CP No.467(IB)/2017 does not suffer from any apparent error on record which could call for any interference in the exercise of this Appellate Jurisdiction. Hence, the Comp App (AT) (CH) (Ins) No.459/2023 would stand dismissed.
As a consequence of the order passed in CA (AT) (CH) (Ins) No.459/2023 rejecting the restoration application preferred by the Appellant to recall the order of 04.09.2019 passed by NCLT in MA/665/2019, the order dated 10.07.2023 passed in IA(IBC)/1103(CHE)/2023 in CP(IB) No.467/2017 by NCLT, Chennai, does not call for any interference. Hence, this Comp App (AT) (CH) (Ins) No.460/2023 would stand dismissed for the grounds dealt with herein above.