Modern Planners Pvt. Ltd. & Ors. vs Ashutosh Gupta & Anr.

04.10.2023: When the appeal was taken up Mr. Anukul Raj, Ld. Counsel assisted by Mr. Shashwat Anand, Ld. Counsel for the Appellant sought permission to argue on the merit of the appeal. However, on being asked that in the present appeal an application for condonation of delay in re-filing has been filed, Ld. Counsel for the Appellant argued on interlocutory application which was filed for condonation of delay in re-filing. Fact remains that earlier since there was delay of 39 days i.e. for more than 30 days, the Ld. Registrar of this Tribunal, by its order dated 15.09.2023, has placed this appeal before the Bench for considering the condonation of delay application. Thereafter, on 18.09.2023, when appeal was taken up it was submitted by one Mr. Vivek Kumar, Ld. Counsel that only yesterday he had received brief from his client. He further informed that his client had taken over the brief from the previous Counsel and as such he sought permission to file fresh Vakalatnama. He was permitted to file fresh Vakalatnama within one week and thereafter it was directed to list the appeal for today i.e. 04.10.2023.

Today, the Ld. Counsel, who had earlier filed appeal, appeared and submitted that earlier though client had taken back the brief, but now his client has again authorized him to appear in this appeal and thereafter Mr. Anukul Raj, Ld. Counsel assisted by Mr. Shashwat Anand, Ld. Counsel who is Advocate on record, started submission and we heard him firstly on Interlocutory application which was filed for condonation of delay in re-filing. Since some reason were assigned, we have been persuaded to allow the application for condonation of delay application in re-filing. Thereafter, he tried to place the case on merit. Again it was pointed out by this court that the appeal has been filed along with an another interlocutory application i.e. I.A. No. 4297 of 2023 which was filed for exemption from filing certified copy of the order. The order impugned was passed on 13.06.2023 and thereafter the appeal was preferred on 26.07.2023. In normal course it was expected that the appellant would have obtained the certified copy of the order and filed the same without any further delay. An application for exemption in filing certified copy is to be filed where there is no time in filing appeal. Once an appeal is filed, it is expected that immediately thereafter certified copy will be filed.

However, in the present case till date certified copy of the impugned order has not been brought on record.

However, in the present appeal despite the fact that impugned order was passed on 13.06.2023 and thereafter firstly on15.09.2023 the matter was placed before the Ld. Registrar for condoning delay in re-filing and again the appeal was listed before the Bench and on 18.09.2023. The conduct of the Appellant shows that he had earlier taken brief from his Counsel and requested another Counsel to appear. This was the reason that one Mr. Vivek Kumar, Ld. Counsel had appeared on last date and requested for short time for filing fresh Vakalatnama and again the same appellant has authorized the same Counsel for appearing that too without filing of the certified copy of the impugned order. Though at this stage in absence of certified copy of the impugned order we are not required to examine the merit of the case, however the fact remains that appeal has been preferred under Section 421 of the Companies Act, 2013 against an order dated 13.06.2023 passed by National Company Law Tribunal, New Delhi (herein after referred to as NCLT) in CA 328/ND/2022 in CP-47/241-242/ND/2021 whereby an application filed by the Appellant on the point of maintainability was rejected. The order further reflects that company petition was ripe up for hearing and in the case reply was also filed however belatedly maintainability point was raised by filing an application which has been rejected by the order impugned.

We are not recording any opinion on the merit of the case, but we are not inclined to entertain the present appeal due to the latches on the part of the appellant, particularly in view of the fact that even after expiry of several months the appellant has not brought on record the certified copy of the order and also the fact that on instruction of the appellant on last date, i.e. on 18.09.2023 an advocate got the appeal adjourned for filing fresh Vakalatnama, whereas today it was intimated that the Counsel who had filed Vakalatnama along with Memo of Appeal has been again asked to appear. Obviously conduct of the appellant appears to be not fair.

In view of afore referred reason, the appeal stands dismissed.