Hotel Milestonnez Pvt Ltd vs State Bank Of India & Anr.

17.08.2022: Heard, the Learned Counsel for the Applicant / Appellant in IA/639/2022 in the instant Company Appeal (AT)(CH)(Ins) No.300/2022 (‘Condone Delay’ Application).

According to the Learned Counsel for the Petitioner / Applicant / Appellant, the instant Company Appeal (AT)(CH)(Ins) No.300/2022 is preferred before this ‘Tribunal’, as against the Order dated 19.04.2022 passed by the ‘Adjudicating Authority’ (Division Bench – I, National Company Law Tribunal, Chennai) in CP/IB/243/2021 and in preferring the said instant Company Appeal, there has occasioned a delay of ‘53 days’ and the same is required to be condoned by this ‘Tribunal’, on the ground that the delay in filing the Application was due to the expectation from the Bank on ‘One Time Settlement’ (OTS) and that the Creditor had not granted an opportunity to the Petitioner / Applicant / Appellant. In this process, there has occasioned a delay of ‘53 days’, in question.

It is to be pointed out that the ‘impugned order’ of the ‘Adjudicating Authority’ (Division Bench – I, National Company Law Tribunal, Chennai) was passed on 19.04.2022 in CP/IB/243/2021 and it has to be filed, within 30 days, as per the Section 61 of the Insolvency & Bankruptcy Code, 2016. The ‘Appeal’ should have been preferred by the ‘aggrieved appellant’ soon after receipt of a copy of the ‘Order’, viz., within ’30 days’ in the instant case but the ‘Appeal’ was filed on 11.07.2022, before this ‘Tribunal’ (Vide diary No.606).

On mere perusal of the ingredients of Section 61 of the Insolvency and Bankruptcy Code, 2016, indicates that the Appeal should be preferred within ‘30 days’ from the date of passing of the ‘Order’ by the ‘Adjudicating Authority’ and a further time of ‘15 days’ can be provided to the concerned aggrieved person and, in all, an ‘Appeal’ is to be preferred by the affected, within ’45 days’ in all, and beyond that, if the delay is occurred in preferring the ‘Appeal’, the ‘Adjudicating Authority’ has no power to ‘condone’, the same.

It cannot be again said that the Insolvency & Bankruptcy Code, 2016 is an inbuilt one and even in the Hon’ble Supreme Court ‘Order’ dated 10.01.2022 in Miscellaneous Application No.21 of 2022 in Miscellaneous Application No.665 of 2021 in Suo Moto Writ Petition (C ) No.3 of 2020 in Re: Cognizance for Extension of Limitation with Miscellaneous Application No.29 of 2022 in Miscellaneous Application No.665 of 2021 in Suo Moto Writ Petition (C ) No.3 of 2020 in Paragraph 5 at III, it is observed as under:-

Further, Paragraph 5 at IV of the aforesaid order of the Hon’ble Supreme Court, clarifies that the period from 15.03.2020 till 28.02.2022 shall stand excluded in computing the periods prescribed under Section 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, etc.

In view of the fact that, admittedly, the Petitioner / Applicant / Appellant has preferred the instant ‘Appeal’ before this ‘Tribunal’ on 11.07.2022 (vide Diary No.606), and in all, there has occasioned a delay of ‘53 days’. However, as per the I & B Code, 2016 (vide Section 61 of the I & B Code, 2016), the maximum outer limit period for ‘condonation delay’ (30 + 15) is only 45 days. As such, this ‘Tribunal’ undoubtedly come to a consequent conclusion that the instant Company Appeal (AT)(CH)(Ins) No.300/2022 is filed beyond the ‘time limit’ prescribed under the Insolvency & Bankruptcy Code, 2016. As such, the I.A.639/2022 fails.

In fine, IA/639/2022 in the instant Company Appeal (AT)(CH)(Ins) No.300/2022 is ‘dismissed’. No Costs.

In view of the dismissal of IA/639/2022 in the instant Company Appeal (AT)(CH)(Ins) No.300/2022, the instant Company Appeal (AT)(CH)(Ins) No.300/2022 is not entertained and hence ‘Rejected’. No Costs. The connected IA Nos.637 and 638/2022 are also Closed.