M S Sriharsha vs Shri. Ravindra Beleyur & Anr.

Justice M. Venugopal, Judicial (Member):

Heard, the Learned Counsel for the ‘Appellant’ Mr. B. Thilak Narayanan, appearing for the ‘Petitioner’ in IA No.865/2023 in Company Appeal (AT) (CH) (Ins) No.282/2023 (Condone Delay Application).

According to the ‘Petitioner’ / ‘Appellant’, is admittedly not a ‘Party’, to the proceeding, before the ‘Adjudicating Authority’ / ‘Tribunal’, and a ‘Better Affidavit’, was filed, before the ‘Office of the Registry’, by the ‘Petitioner’ / ‘Appellant’, stating that the ‘Revised Repayment Plan’, was prepared on 08.07.2023 and forwarded the same, to his Learned Counsel at Chennai on 10.07.2023, through email and in this process the time limit prescribed under Section 61(2) of the I & B Code, 2016, (30 days) had expired. In reality, the instant Appeal, came to be filed on 22.07.2023. In this process, there has occasioned a delay of 14 days, in preferring the instant ‘Company Appeal (AT) (CH) (Ins) No.282/2023’, which is neither wilful nor wanton, but for the abovesaid ‘bonafide’, reasons.

On behalf of the ‘Respondent’ / ‘Resolution Professional’ of Personal Guarantor, Mr. Raghavulu Naidu, the Learned Counsel appearing for the ‘Respondent No.2’ (‘Committee of Creditors’), submits that the reasons ascribed, on behalf of the ‘Petitioner’ / ‘Appellant’, are not ‘Bonafide’ and they are ‘unacceptable’.

According to the 2^nd Respondent, the copy of the ‘Better Affidavit’, relating to the ‘Condonation of Delay’, Petition in IA No.865/2023, was not served to the ‘2^nd Respondent’ / ‘Committee of Creditors’ and hence, the ‘Condone Delay Application’ in IA No.865/2023 is liable to be dismissed, ‘in furtherance of Substantial Cause of Justice’.

To be noted, under Section 61(1) of the IBC Code, 2016, this ‘Tribunal’, points out that, in respect of an ‘order’ being passed by an ‘Adjudicating Authority’ / ‘Tribunal’, an ‘aggrieved person’ is entitled, to prefer an ‘Appeal’, within 30 days’ from the date of ‘pronouncement of order’ passed by the ‘Adjudicating Authority’. Further, the Section 61(2) of the Code, 2016 unerringly, points out, that the ‘Appellate Tribunal’, is enjoined to condone the delay of 15 days (after the expiry of 30 days), provided the ‘Petitioner’ / ‘Appellant’ has furnished ‘Sufficient Cause’, in regard to the delay that has occurred in preferring an ‘Appeal’.

As a matter of fact, a ‘discretion’ is given to the ‘Appellate Tribunal’, to condone the delay of 15 days (after the expiry of 30 days), if the person / party comes out with adducing reasons, which come within the ambit of ‘sufficient cause’, as per Section 61(2) of the Code, to ‘subjectively satisfy the conscience’ of the ‘Appellate Tribunal’.

On perusing the ‘Better Affidavit’, in paragraph 2 of the ‘Petitioner’ / ‘Appellant’ in IA No.865/2023 & 885/2023 in the ‘instant Appeal’, whereby and whereunder, the Appellant, has come out with reasons that he is a 3^rd party to the proceedings, before the ‘Adjudicating Authority’ / ‘Tribunal’, and he took some time to prepare the ‘Appeal Papers’ with the Learned Counsel at Chennai etc.

This ‘Tribunal’ by not adopting a ‘hyper technical’ or pedantic approach, but by resorting to a ‘meaningful and purposeful’ approach, and by taking a lenient, liberal, ‘pragmatic’ and ‘rational’ view ‘condones the delay of 14 days’ (after the expiry of 30 days), to secure the ‘ends of Justice’ and allows the IA No.865/2023 in Comp App (AT) (CH) (Ins) No.282/2023, but without costs.

After hearing the arguments of Mr. Thilak Narayanan, Learned Counsel for the ‘Appellant’ and also upon the hearing the arguments of Mr. Raghavulu Naidu, Learned Counsel, appearing for the ‘Respondent No.2’ / ‘Committee of Creditors’, this ‘Tribunal’, on going through the Impugned Order dated 09.06.2023 in IA No.593/2022 in CP(IB) No.76/BB/2021, is of the considered view that the ‘Adjudicating Authority’ / ‘Tribunal’, had clearly mentioned at para 4 of the impugned order that it perused the ‘Report’ of the ‘Meeting of the Creditors’ on the Repayment Plan under Section 112 of the I&B Code, 2016, and the ‘Resolution’, passed in the meeting dated 01.12.2022 was also taken into consideration and according to the said ‘Report’ and the ‘Resolution’, the ‘Creditors’ had not approved the Repayment Plan, submitted by the ‘Personal Guarantor’.

At this juncture, this ‘Tribunal’ worth points out that according to the Appellant, a Revised Repayment Plan was given on 8.07.2023 and it is brought to the notice of this Tribunal, (on behalf of the 2^nd Respondent / Committee of Creditors), that ‘Two opportunities’ were provided to the Appellant, and in such a situation, the Appellant, has not come out with clean hands in the eye of law and hence, the instant ‘Appeal’, is liable to be dismissed in the interest of justice.

Be that as it may, this ‘Tribunal’, on being subjectively satisfied as to the ‘reasons’ ascribed by the ‘Adjudicating Authority’ / ‘Tribunal’ ‘especially’, in the teeth of para 4 of the impugned order, dated 09.06.2023 in IA No. 593/2022 in CP(IB) No. 76/BB/2021 comes to an ‘inevitable’, ‘irresistible’ and inescapable conclusion that the instant ‘Appeal’ ‘sans merits’ and accordingly, it fails.

In fine, the Comp App (AT) (CH) (Ins) No.282/2023 is ‘dismissed’ by this ‘Tribunal’ of course for the reasons assigned in this ‘Appeal’. ‘No costs’.