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Judgment
Anant Bijay Singh, J
I.A. No. 1657 of 2021 has been filed in the instant Appeal seeking condonation of delay of 102 days in filing the instant Appeal.
From the perusal of the order dated 23.08.2021 the matter was heard and the Respondent was directed to file Reply Affidavit on I.A. No. 1657 of 2021 (for condonation of delay) and I.A. No. 1658 of 2021 (for Stay) and the main Appeal. Vide order dated 30.09.2021 the I.A. No. 1658 of 2021 for stay of the impugned order was not pressed by the Appellants, the I.A. No. 1658 of 2021 was dismissed. On 10.12.2021 only I.A. No. 1657 of 2021 for condonation of delay of 102 days was taken up. The Respondent appeared and filed Rely Affidavit.
The Learned Sr. Counsel for the Appellants while pressing the I.A. No. 1657 of 2021 submitted that the instant Appeal i.e. Company Appeal (AT) (Insolvency) No. 623 of 2021 has been filed on 03.08.2021 being aggrieved and dissatisfied by the order dated 12.08.2020 passed by Ld. Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata in I.A. (IB) No. 601/KB/2020 in C.P. (IB) No. 1635/KB/2018 whereby and where under the Application filed by Mr. Santosh Choraria, the Resolution Professional prayed for approval of resolution plan of Suraj Fabrics Industries Limited (Corporate Debtor) under Section 30(6), Section 31, Section 60(5) of the Insolvency and Bankruptcy Code, 2016 along with Regulation 39(4) of the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 for the reason that the Resolution Plan of M/s Sponge Sales India Private Limited, was approved by CoC with 100% voting shares was approved by the Ld. Adjudicating Authority under provisions of sub Section (1) of Section 31 of the Insolvency and Bankruptcy Code, 2016.
The Learned Sr. Counsel for the Appellant while pressing the I.A. No.1657 of 2021 submitted that that a true copy of the impugned order was communicated to the Appellant herein on 25.03.2021 and further, true copy of the Resolution Plan dated 14.03.2020 by the Resolution Applicant, namely M/s Sponge Sales (India) Private Limited was received by the Appellant on 25.03.2021. Further submitted that the Appellants were not a party to the proceedings before the Hon'ble NCLT, Kolkata.
In para 3 of the I.A. No. 1657 of 2021 it has been mentioned that the same were sent to various authorities and thereafter to the Law Department for their comments and it consumed some time and thereafter, the instant Appeal was filed on 03.08.2021 with Application for condonation of delay of 102 days, it may be condoned and the Appeal may be heard on merit.
The Respondent filed his Reply Affidavit to I.A. No. 1657 of 2021 through the Authorized Representative, Mr. Pankaj Khetan, authorized vide Board Resolution dated 21.08.2021.
The Learned Counsel for the Respondent submitted that the Resolution Plan was submitted by M/s Sponge Sales (India) Private Limited and passed by the CoC with a 100% vote and has subsequently been approved by the Hon'ble NCLT, Kolkata Bench vide order dated 12.08.2020.
It is further submitted that the present Appeal is barred by limitation as the same has been filed with a delay of more than 356 days, whereas the Appellants have erroneously stated that the delay is 102 days only.
It is further submitted that the Resolution Professional vide email dated 17.08.2020 had already intimated the Director, Himachal Pradesh State Electricity Board (for short HPSEB) that the Resolution Plan submitted by M/s Sponge Sales (India) Private Limited has been duly approved by the Hon'ble NCLT, Kolkata vide order dated 12.08.2020 in I.A. (IB) No. 601/KB/2020 in C.P. (IB) No. 1635/KB/2018.
It is further submitted that the Appellants contention that they were not aware of the impugned order is erroneous, false and rather misleading. The Appellants have deliberately and consciously suppressed this fact in the present Appeal to mislead this Tribunal. This act alone proves that the Appellants failed to prefer the present Appeal within time and now distorting the facts with a malafide intent to serve their own needs.
It is further submitted that vide email dated 17.08.2020, the Resolution Professional also served a copy of the impugned order dated 12.08.2020 to the Appellant and the same is annexed as Annexure R/2 at page 10 of the Reply Affidavit.
It is further submitted that the Resolution Professional vide a second email dated 03.09.2020 (Annexure - A-8 at page 161 of the Appeal Paper Book) intimated the Appellants that the resolution proceeds against the admitted claim of the Appellants have been disbursed. The email reiterated the previous email that the resolution plan of M/s Suraj Industries Limited has been approved by the Ld. Adjudicating Authority vide order dated 12.08.2020.
It is further submitted that a single window application dated 11.11.2020 (Annexure R/3 of the Reply Affidavit) to facilitate approvals required (including power connection) as per rules of the Directorate of Industries, HP Government was filed by the Respondent (Suraj Fabrics Industries Limited). The single window application dated 11.11.2020 was approved by the monitoring Authority of the State Government at its meeting held on 10.03.2021 and the In-Principle Approval has been conveyed to the Suraj Fabric Pvt. Ltd. vide letter dated 23.03.2021 (Annexure R/4 of the Reply Affidavit). Despite being aware of the CIRP, as evidenced by the claim filed in Form B, abovementioned letter and emails dated 17.08.2020 and 03.09.2020 sent by the Resolution Professional to HPSEB, the Appellants have conveniently failed to place these facts on record and have falsely made submissions that the Appellants was not aware of the impugned order.
It is further submitted that the amount as provided for under the Resolution Plan stood transferred to the account of the Appellant as early as 03.09.2020 but the Appellant failed to challenge the impugned order approving the Resolution Plan at an earlier stage when they received the approval order or payment intimation vide emails dated 17.08.2020 and 03.09.2020 respectively. The Appellants failed to challenge the impugned order, they preferred the instant Appeal at the belated stage. Therefore, there is not merit in the instant Appeal and no case for condonation has been made out by the Appellants in para 3 of their aforesaid I.A. They have given bland statement the impugned order sent to various authorities and thereafter to the Law Department for their comments, so no case for condonation of delay is made out and the I.A. No. 1657 of 2021 may be dismissed and consequently, Appeal may be dismissed.
After hearing the parties and going through the record and also the submissions, we are of the view that the Appellants had the knowledge of the impugned order dated 12.08.2020 passed by Ld. Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata in I.A. (IB) No. 601/KB/2020 in C.P. (IB) No. 1635/KB/2018 from the email dated 17.08.2020 sent by the Resolution Professional of Suraj Fabrics Industries Limited (Respondent) way back of 17.08.2020 (Annexure R/2 at page 10 of the Reply Affidavit filed by Respondent) and the instant Appeal has been filed on 03.08.2021 and no sufficient explanation for condonation of delay have been made out in the instant Appeal.
In view of the above, the I.A. No. 1657 of 2021 is dismissed consequently, the instant Appeal is also dismissed.
Registry to upload the order on the website of this Appellate Tribunal and send the copy of this order to the Ld. Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata, forthwith.