Lalremsiem & Ors. vs IFCI Venture Capital Funds Ltd. & Anr.

Per: Barun Mitra, Member (Technical) Present is an appeal which has been filed by the Appellant under Section 61 of the Insolvency and Bankruptcy Code, 2016, (‘IBC’ in short) challenging the order dated 21.08.2025 passed by the Adjudicating Authority (National Company Law Tribunal, Guwahati Bench) in CP/IB/6/GB/2025.

This appeal has been e-filed before this Tribunal on 17.11.2025 and physically filed on 19.11.2025. The Appeal has been accompanied with I.A No. 7084 of 2024 which is an application praying for condonation of 51 days delay in filing of the appeal. The prayers contained in I.A No. 7084 of 2024 read as follows:

The Ld. Counsel for the Appellant-Corporate Debtor submitted that the present appeal has been filed assailing the impugned order passed ex-parte by the Adjudicating Authority admitting Section 7 application filed by the Financial Creditor-Respondent No.1. Admitting that there was delay in the filing of the present appeal, it was however contended that it was not a case of simpliciter routine delay but a delay which had been occasioned by the fact that the Section 7 proceedings had been conducted behind their back and that they acquired knowledge of the said proceedings at a much later point of time after the passing of the impugned order on 21.08.2025. Submission was pressed that there was no proper service of notice upon the Corporate Debtor as no notice was ever delivered unto them and in the absence of valid service or sufficient notice, there is no substance in the assertion made by the Respondent No.1 that the Appellant had intentionally abstained from appearing before the Adjudicating Authority. It was submitted that the Appellant was completely unaware of the filing, hearing and the admission of the Section 7 application. However, once they learned about the impugned order, they acted with due alacrity and applied for certified copy of the impugned order on 07.11.2025 before the NCLT Registry. The certified copy was obtained on 10.11.2025 and thereafter the appeal was filed on 17.11.2025 which demonstrated their bonafide intent of not causing any delay in the conduct of the proceedings. It was therefore contended that when the Section 7 proceedings had been conducted ex-parte by the Adjudicating Authority without effective service and the Appellant was kept in the dark about the Section 7 proceedings, in such circumstances, the limitation must run from the date of knowledge of the impugned order and not from the date of pronouncement of the impugned order so that the ends of justice is not compromised. The Ld. Counsel for the Appellant has relied on the judgment of the High Court of Allahabad in Pati Rakhan Vs Chandrani Devi 2021 SCC Online All 143 to contend that rules of limitation are not meant to destroy the right of the parties and the court has to see carefully that there is substance in the explanation given in the delay condonation irrespective of the length of delay.

Rebutting the arguments canvassed by the Appellant, it was submitted by the Ld. Counsel for the Respondent No.1 that the present appeal has been filed beyond the 30 days statutory limitation period under IBC and the 15 days of discretionary extended period. Since the Appellant has sought condonation of delay beyond the period of 45 days, the IA No. 7084 of 2025 seeking condonation of delay was impermissible under law. It was also added that the certified copy of the impugned order having been applied for by the Appellant after the expiry of the limitation period of 30 days from the date of the pronouncement of the order, the time taken in obtaining the certified copy also cannot be excluded while computing the period of delay in terms of established judicial precedent. It was also asserted that the Appellant had failed to substantiate the allegation of improper service of the notice of Section 7 petition. Denying the Appellant’s allegations regarding non-service of the Section 7 application, it was contended that the said application was duly served on 04.03.2025 at the registered email address of the Corporate Debtor as reflected in the Ministry of Corporate Affairs (MCA) portal. It was strenuously contended that the registered address and email of the Corporate Debtor continue to remain unchanged in the MCA records and the Appellant had failed to produce any material to prove the contrary. It is further submitted that the Adjudicating Authority, by its order dated 24.03.2025, had directed service of the notice through all possible modes and on 15.04.2025, the Adjudicating Authority also recorded that the tracking report indicated successful delivery of the notice on 04.04.2025. Despite this, the Adjudicating Authority had granted the Appellant further opportunity to be heard and on 02.05.2025, on being satisfied that due service of notice had been effected and yet the present Appellant had absented themselves from the hearing, the Adjudicating Authority proceeded to set the matter ex- parte. It was therefore contended that the plea taken by the Appellant of lack of service and sufficient notice is a mere eye-wash and this cannot be a justifiable ground for condonation of delay in filing the present appeal beyond the statutory limitation period. In support of their contention, reliance has been placed on the recent decision of the Hon’ble Supreme Court of India in Tata Steel Ltd. Vs. Raj Kumar Banerjee & Ors. in Civil Appeal No. 408 of 2023 wherein it has been categorically held that NCLAT does not have powers to condone delay beyond the period stipulated under the IBC.

We have duly considered the arguments advanced by the Ld. Counsel for both parties and perused the records carefully.

The Appellant has submitted that they are aware that delay condonation is not a matter of right and have therefore approached this Tribunal with full disclosure of the reasons behind the 59 days delay pointed out by the NCLAT Registry. The Appellant asserted that the delay had occurred due to complete absence of knowledge of the proceedings owing to non-service of the Section 7 petition on them. It was contended that the service of notice of the Section 7 proceedings upon them as claimed by the Respondent No. 1 was not valid, lawful and effective. It is submitted that one of the notices purportedly sent to them was delivered to the Financial Creditor itself, while another notice which was sent to strife-torn Manipur was also not received by them due to paralysis of communication infrastructure while another notice got redirected to Kolkata GPO which when seen together adequately demonstrates non-delivery of any notice upon the Corporate Debtor. It is further submitted that the registered office and email which have been relied upon were non-functional for years and the Respondent No.1 despite being aware of these facts deliberately relied on outdated MCA particulars to create an illusory record of service. Mere mechanical dispatch of notices or postal tracking entries by them, without proof of actual and effective delivery, did not satisfy the requirement of service in law. This denied the Appellant the opportunity to contest the Section 7 proceedings. The Corporate Debtor eventually became aware of the impugned order only after the Interim Resolution Professional had contacted an ex-auditor of the Corporate Debtor’s team. In such peculiar circumstances, where the Appellant remained thoroughly unaware of the Section 7 proceedings even after the pronouncement of the ex-parte order, hence, the limitation period should be counted from the date of acquiring knowledge of the impugned order by them. Any denial of condonation of delay in such circumstances would amount to giving precedence to procedural limitation over substantive justice.

Per contra, it is the case of the Respondent No.1 that the limitation period commences from the date of pronouncement of the impugned order and that any delay beyond the statutory outer limit of 45 days cannot be condoned under Section 61(2) of the IBC. In support of their contention, reliance has been placed on the judgment of the Hon’ble Supreme Court in Safire Technologies Pvt. Ltd. Vs Regional Provident Fund Commissioner in Civil Appeal No. 2212 of 2021, wherein it has been held that the date of knowledge of the impugned order is not relevant for purposes of computation of limitation in terms of the statutory provisions of IBC. It was also contended that the Section 7 application was duly served on the Appellant at their registered address and on their email as reflected on the MCA portal and even the postal tracking reports show successful delivery. It is contended that the Appellant has failed to establish that the registered particulars of the address were incorrect. Furthermore, not only was sufficient opportunity granted by the Adjudicating Authority to the Appellant to be present before them but only after being satisfied that due service of notice had been effected that the Adjudicating Authority decided to proceed ex-parte. The Respondent No.1 also submitted that the application for certified copy must be made within the limitation period of 30 days, and only the time consumed between application and receipt can be excluded. It is also contended that the Appellant cannot claim exclusion of time prior to the application for certified copy as settled by judicial precedents.

To arrive at our findings, we would like to first notice the relevant orders passed by the Adjudicating Authority while dealing with the Section 7 application from the perspective of service of notice. The first order is of 24.03.2025 which is as extracted below:

When we look at the above two orders, we find that the Adjudicating Authority has taken care that notice was served upon the Appellant by all modes and even perused the proof of service report to satisfy itself. There is no material placed on record by the Appellant to show that the registered address and email id of the Corporate Debtor as available on the MCA portal had undergone any change. Though an assertion was made by the Appellant before us that they were in the process of changing such information, the Appellant had no clear answer to the fact as to why and how the MCA database still reflected the same registered address and email- id even after the passing of the impugned order which the Respondent No. 1 has placed at Annexure R-3 in their reply to the delay condonation application filed by the Appellant. We therefore find the stand of the Appellant on change in their address and email to be rather nebulous and do not feel convinced with the credibility of their argument.

Now coming to the statutory construct of the IBC, the limitation for filing an appeal under Section 61(2) of the IBC is 30 days which period is extendable for a further period of 15 days if the Tribunal is satisfied that there was sufficient cause for not filing the appeal within limitation. Section 61(2) reads to the effect:

We are also guided by the recent judgement of Hon'ble Supreme Court in Tata Steel Ltd. Vs. Raj Kumar Banerjee & Ors. in Civil Appeal No. 408 of 2023 which reads to the effect:

Coming to the chronology of the filing in the present case, we find that the impugned order was passed on 21.08.2025. For counting the statutory period of 30 days for filing the appeal, the same is to be counted from the day after the date of pronouncement of the impugned order. The date of knowledge of impugned order is immaterial for limitation computation. Calculated accordingly, the statutory period of 30 days for filing the appeal in the present case came to an end on 20.09.2025. The further extendable period of 15 days in terms of proviso to Section 60(2) of the IBC ended on 05.10.2025. However, the present appeal has been e-filed by the Appellant on 17.11.2025 which date prima facie lies beyond the outer limit of thirty plus fifteen days provided under Section 61(2) of the IBC and therefore beyond the condonable jurisdiction of this Appellate Tribunal as held by the Hon’ble Apex Court in Tata Steel judgement supra.

In view of the foregoing discussion, we are of the considered view that the Appeal has been filed beyond the condonable period of 15 days. The jurisdiction of this Appellate Tribunal to condone delay being strictly limited by statute, we are unable to condone the delay in the filing of this Appeal. Accordingly, the delay condonation application is dismissed. Consequently, the Memo of Appeal and other I.A.s are all rejected.