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Judgment
ORDER
Per: Justice Rakesh Kumar Jain:
This appeal is directed against the order dated 28.02.2023, passed by the Adjudicating Authority (National Company Law Tribunal, Bengaluru Bench) by which a petition i.e. CP (IB) No. 74/BB/2021 filed under Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short ‘Code’) by the Operational Creditor / Appellant has been dismissed.
This Appeal has been filed alongwith an application i.e. I.A. 664 of 2023 for condonation of delay of 14 days in filing of the appeal. It is well settled that until and unless the delay in filing of the appeal is condoned the appeal itself cannot be heard on merit, therefore, Counsel for the Appellant has been asked to address his arguments on the application for condonation of delay at the first instance.
Counsel for the Appellant has submitted that the impugned order was passed on 28.02.2023. The certified copy of the impugned order was provided on 06.03.2023 and the appeal has been filed after the expiry of 14 days of the extended period.
Counsel for the Appellant has submitted that the Appeal could not be filed within time because the managing partner of the Applicant firm is about 74 years who is also the authorised representative cum signatory of the firm could not engage a Counsel at Chennai in time for the purpose of filing of the appeal.
We have heard Counsel for the Appellant and perused the record. Section 61 of the Code deals with the appeals and the appellate authority. Section 61 is reproduced as under:-
“Section 61. Appeals and Appellate Authority.
(1)Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal.
(2)Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days.”
Section 61(1) provides a statutory right to any person who is aggrieved by an order of the Adjudicating Authority to prefer an appeal to the appellate authority. Section 61(2) prescribes a period of 30 days within which the appeal under Section 61(1) is to be filed before the Appellate Authority, however, Section 61(2) proviso further provides for a period of 15 days for the purpose of extension of time in case the Applicant is able to satisfy the Appellate Authority that there was a sufficient cause for not approaching the Appellate Authority in time with the appeal but in no case the period of 15 days can further be extended. In this regard, the Hon’ble Supreme Court in the case of National Spot Exchange Limited Vs. Mr. Anil Kohli, RP for Dunar Foods Limited, Civil Appeal No. 6187 of 2019 decided on 14.09.2021 has held that:-
“11.2In the case of Teri Oat Estates (P) Ltd. v. U.T. Chandigarh, reported in (2004) 2 SCC 130, in paragraphs 36 & 37, it is observed as under:
“36.We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be contravention of a statutory provision.
37.As early as in 1911, Farwell, L.J. In Latham v. Richard Johnson & Nephew Ltd. (1911-12) All ER Rep 117 observed: (All ER p. 123E)
“We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o’ the wisp to take as a guide in the search for legal principles” Thus, considering the statutory provisions which provide that delay beyond 15 days in preferring the appeal is uncondonable, the same cannot be condoned even in exercise of powers under Article 142 of the Constitution.
12.In view of the afore-stated settled proposition of law and even considering the fact that even the certified copy of the order passed by the adjudicating authority was applied beyond the period of 30 days and as observed hereinabove there was a delay of 44 days in preferring the appeal which was beyond the period of 15 days which maximum could have been condoned and in view of specific statutory provision contained in Section 61(2) of the IB Code, it cannot be said that the NCLAT has committed any error in dismissing the appeal on the ground of limitation by observing that it has no jurisdiction and/or power to condone the delay exceeding 15 days.”
Any person, who is aggrieved by an order of the Adjudicating Authority, has a right to appeal but for that purpose a period of 30 days has been prescribed. In case, the Appellant fails to file the appeal within the period of 30 days due to some reasons which is justifiable or constitute a sufficient cause, the appeal still can be filed within a period of 15 days but it cannot be extended any further beyond the period of 15 days in view of the Judgment of the Hon’ble Supreme Court in the case of National Spot Exchange Limited (Supra).
The Appellant has given a lame excuse for not filing the appeal in time (30 days) on the ground that the person who had to file the appeal is 74 years of age but it is nowhere mentioned in the application much less the affidavit attached that he was infirm and incapable of engaging the counsel for the purpose of filing the appeal. It appears to us that there has been a totally causal approach of the Appellant in coming to this Court in appeal beyond the period of 30 days and without any sufficient cause. In view thereof, we are of the considered opinion that there is hardly any merit in this application which requires our consideration and interference, consequently, the application is found devoid of any merit and the same is hereby dismissed. No costs.
CA (AT) (Ins) No. 203 of 2023
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 the same is thus hereby dismissed. No costs.