India Power Corporation Ltd. vs Ravi Shankar Devarakonda & Ors.

16.11.2023: This appeal is directed against the order dated 10.08.2023, passed by the National Company Law Tribunal, Hyderabad Bench –II, by which IA No. 156 of 2023 filed in CP (IB) No. 184/7/HDB/2019 by the Resolution Professional for approval of the Resolution Plan submitted by the Vedanta Ltd. (Resolution Applicant) approved by the CoC of the Meenakshi Energy Ltd. (Corporate Debtor) with a majority of right enforced by 94.96% by way of e-voting has been allowed.

India Power Corporation Ltd. (Appellant) has filed the present appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (for short ‘Code’). This appeal has been filed along with an application bearing IA No. 1181 of 2023 under rule 11 read with rule 31 of the NCLAT Rules, 2016 seeking condonation of delay of 15 days.

Since, it is a settled law that the appeal cannot be heard on its merit and decided until and unless delay in filing the appeal is condoned, therefore, Counsel appearing on behalf of the appellant has argued the application at the first instance.

Counsel appearing on behalf of the Appellant has referred to the application in which the reason given for condonation of delay is as under:

Counsel for the Appellant has submitted that because of the aforesaid reason the delay has been caused which is neither deliberate nor intentional and prayed that the application may be allowed and appeal may be decided on its merit. We have heard Counsel for the Appellant and perused the record.

Since the appeal has been filed under Section 61 of the Insolvency and Bankruptcy Code, 2016 (Code), therefore, we would refer to the said provision which is reproduced as under:

Section 61 (1) provides that any person who is aggrieved by the order of the Adjudicating Authority may prefer an appeal to the National Company Law Appellate Tribunal. Section 61 (2) further provides that every appeal, in terms of Section 61 (1), has to be filed within the period of 30 days. Section 61 (2) proviso further allows the appellant a 15 days time to file the appeal even after expiry of the period of 30 days, if it satisfies the Appellate Authority that there was a sufficient cause for not filing the appeal but such period shall not exceed 15 days in any case. Thus, the literal interpretation of the aforesaid provision of Section 61 (1) (2) and proviso is that the appeal is a statutory right for which the period of 30 days is provided which can further be extended for another fifteen days subject to assigning of a sufficient cause to the satisfaction of the Appellate Authority for not filing the appeal within the period of 30 days but no appeal can be filed after the expiry of 15 days.

In the present case, as per the averments made in the application, the impugned order was passed on 10.08.2023. The impugned order was made available on 11.08.2023. According to the appellant the limitation of 30 days expired on 09.09.2023. However, as per the office record the appeal was filed through e-filing on 25.09.2023 at 3:58 PM i.e. on the 46^th day. In case it is presumed that the appeal was filed on 46^th day i.e. beyond the period of 30+15, the question would arise as to whether the delay of 46^th day can be condoned by the Appellate Tribunal? In this regard reference may be had to the decision of the Hon’ble Supreme Court in the case of ‘National Spot Exchange vs. Mr. Anil Kohli RP for Dunar Foods Limited’ reported in SCC Online SC 716, 2021 in which it has been categorically held that the Appellate Authority shall have the jurisdiction to condone the delay only of 15 days and not beyond the same which cannot even be condoned under Article 142 of the Constitution of India. In that scenario, the application itself is not maintainable because this tribunal does not have the jurisdiction to condone the delay of 16 days. Now, looking from another angle, if it is presumed that there is 15 days delay i.e. the appeal having been filed on the 15^th day (last day), whether the appellant has assigned any sufficient cause for the purpose of seeking condonation of delay?

It is well settled that if the appeal is not filed within the period of limitation prescribed and the delay has occurred then a right would vest in the other side and for the purposes of condonation of delay a plausible excuse much less sufficient cause has to be made which may satisfy the conscious of the Appellate Authority. In the present case, however, the appellant has given the reason that the appeal within 30 days (prescribed period) could not be filed and also till the last day of extended period (15^th day) could not be filed i.e. after consuming the entire period of 45 days, because the appellant was in consultation with its Counsel and internal management with respect to the impugned order and its ramifications. The issue is as to whether both these things i.e. consultation with the Counsel and internal management was within the control of the appellant or beyond it.

In our considered opinion the appellant has made an unbelievable and lame excuse for the purposes of seeking condonation of delay which does not inspire confidence at all and shall not fall within the definition of sufficient cause. Thus, looking from any angle, it is not a fit case in which interference is called for the purposes of condonation of delay and therefore, the application is hereby dismissed though without any order as to costs.

Since we have dismissed the application for condonation of delay by an order of even date, therefore, the present appeal is not found to be duly constituted and hence, the same is hereby dismissed. No costs.