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Judgment
O R D E R
22.07.2022: I.A. 372 of 2021 has been filed for seeking condonation of delay of 388 days in filing of the present appeal.
In brief, an application, filed by the Operational Creditor, for initiation of Corporate Insolvency Resolution Process (CIRP) under Section 9 of the Insolvency and Bankruptcy Code, 2016 was admitted and the Interim Resolution Professional was appointed vide order dated 19.07.2018.
Shorn of unnecessary details, the present appeal has been preferred by the Suspended Promoter/Director of the Corporate Debtor against the order dated 30.09.2019 by which liquidation proceedings have been initiated with the appointment of the Liquidator.
Counsel for the Appellant has submitted that since the Applicant/Appellant is in judicial custody from December, 2017, therefore, he could not file the appeal in time i.e within a period of 30 days in terms of section 61(1) of the Code and also availing the extension of time in terms of Section 61(2) proviso.
It is submitted that as soon as the Appellant came to know of the impugned order, he engaged a counsel somewhere in the month of November, 2020 and filed the present Appeal on 11.12.2020. It is, thus, submitted that the Appellant being disabled to pursue the present appeal being in custody has prayed for condonation of delay in approaching this Appellate Tribunal.
On the other hand, Counsel for the Respondent No. 2, at the outset, has pointed out that though the impugned order has been challenged by the Appellant by which liquidator has been appointed and liquidation proceedings have been initiated yet, knowing fully well, deliberately the Appellant has not impleaded the liquidator as a party in this case. In regard to the condonation of delay, it is submitted that the application is totally vague as the Appellant has not disclosed as to when he came to know about the impugned order.
We have heard Counsel for the parties and perused the record. Since we are dealing with the application for condonation of delay it is worthwhile to refer to Section 61 of the Code which is reproduced as under:
“61.(1) Notwithstanding anything to the contrary contained under the Companies Act 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.”
The aforesaid provision has two parts. The limitation provided is of 30 days to prefer an appeal and in special circumstances the Appellate Authority has been conferred the jurisdiction to condone the delay of another 15 days in case the Applicant satisfies the Appellate Tribunal that there was a sufficient cause for not preferring the appeal within the extended period of 15 days as well.
In the present case, the delay is of 388 days and the Appellant has failed to mention in the application the date on which he came to know about the impugned order dated 30.09.2019. The application is, thus, totally vague and hence on the vague averments the delay cannot be condoned. Moreover, the act and conduct of the Appellant is such which do not inspire confidence in allow this application in his favour because he has not approached the Tribunal with clean hands as he did not implead the necessary party to the lis i.e. liquidator who had been appointed by the Adjudicating Authority vide the impugned order.
No explanation has been given during the course of the hearing by the Counsel for the Appellant for such a remiss on his part. Thus, in view of the aforesaid facts and circumstances, we could not persuade ourselves to pass any order in favour of the Appellant for the purpose of condonation of delay and therefore, the application for seeking condonation of delay is hereby dismissed and as a consequence thereof, the Appeal and any other application which is filed at the instances of the Appellant is also dismissed.