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Judgment
[Oral Judgment: Justice Sharad Kumar Sharma, Member (Judicial)]
These are two company appeals preferred under Section 61 of the I & B Code, 2016. Company Appeal CA(AT)(CH) No. 106/2025 has been preferred being aggrieved against the impugned order of 18.06.2024 as it was rendered in IA No. 10/2024 in CP (IB) No. 296/7/HDB/2022. Company Appeal CA (AT) (CH) No. 107/2025 has been preferred, challenging the impugned order of the 18.06.2024 as it was rendered in IA No. 765/2024, in the same company petition i.e., CP(IB)No.296/7/HDB/2022.
Both these company appeals are accompanied with application to condone Delay, in refiling the respective appeals, being IA No. 296/2025 and IA No. 299/2025. In both these appeals, the Appellant has sought a condonation of 130 days and 209 days respectively, which has chanced in refiling of the appeal. Qua the Appellant herein, the issue of delay in refiling the appeal came up as a subject matter of consideration in Company Appeal (AT)(CH)(INS) No. 131/2025, Mr. Gajjala Yoganand versus Birendra Kumar Agarwal, along with the other connected Company Appeal (AT)(CH)(INS) No. 133/2025, Mr. Gajjala Yoganand versus Birendra Kumar Agarwal and Others. In those two appeals, too, almost an identical issue was the subject matter of consideration for the purposes seeking condonation of a delay in refiling, which has chanced in preferring the appeal. We considered the matter in the light of the ratio laid down by the Principal Bench. And after holding that, the reason which has been given in the application for seeking condonation of delay in refiling is not satisfactory, we rejected the Application seeking to condone delay in refiling the Appeal, and consequently, the Appeal too was laid to rest.
When the present appeals was taken up today, none of the counsels representing the respective parties to the appeal, were able to inform this Tribunal, whether the judgment rendered by this Appellate Tribunal in the aforesaid two company appeals on 28.04.2025, was carried to the Hon’ble Apex Court on appeal.
Hence, we proceed to consider the instant Condone Delay Applications on the same premises as it was done for the earlier Appeals which were decided by the judgment of this Appellate Tribunal dated 28.04.2025, and the reasons, which were assigned in the case of CA(INS) No.131 & 133/2025, will be taken as to be the reason for the purposes of considering the instant Condone Delay Applications.
This time the Appellant has added one more ground to support his claim, which was not there before this Tribunal in the earlier Appeals, which is that apart from the fact that the records of the company petition went missing and could be traced only in February, 2025, certain documents essential for adjudication were illegible and it took time to obtain legible copies. The Appellant submits that, the appeal was e-filed before the Registry of this Tribunal on 18.07.2024, that thereafter the records went missing till February 2025, because of which he was unable to cure the defects and to refile the same with the Registry of this Tribunal in time and that the delay is inadvertent and not intentional and hence may be condoned in the interests of justice. However, by his own admission, the Appeal was e-filed on 18.07.2024, and waiting thereafter for such a long time trying to trace missing records in order to cure the defects pointed out by the Registry shows lack of diligence on part of the Applicant.
Apart from it, the affidavit which has been filed by the Appellant in support of the Condone Delay Application in refiling, being evasive, does not disclose the fact, as to on what basis the aforesaid averments have been made with regards to the alleged theory of the file being lost and retrieved only in February 2025, and also with regard to the time taken to procure legible copies of certain documents.
Apart from the reasons which have been given by this Appellate Tribunal in the judgment of 28.04.2025, aforesaid observations will also be taken as to be the ground for rejection of the Condone Delay Application in refiling in the instant appeals. We also observed that the Principal Bench of the NCLAT in a judgment reported in 2022 SCC online NCLAT 1611 in the matters of Adisri Commercial Private Limited versus Reserve Bank of India has taken a view that delay in refiling, if it is inordinate, it has to be reasonably explained to the satisfaction of the Tribunal and it should not be condoned in a routine manner without testing the reasonability of the delay. Relevant para is extracted hereunder: -
“8.The Learned Counsel for the Respondent submitted that the reasons adduced by the Appellant to explain the delay in refiling are perfunctory, casual and vague, imputing lack of bona-fide on the part of the Appellant, it was submitted that they did not provide details of how their functioning was so adversely affected by Covid pandemic that they needed such an inordinately long time in rectifying the filing defects, even beyond the period, which was otherwise to complete within seven days as per NCLAT Rules. It has also been contended that in the absence of documentary support, the ill-health of the authorized representative is not a genuine excuse and in any case he could have easily been substituted. It was also pointed out that the plea taken by the Appellant that the relevant files of the appeal got misplaced lacks details and fails to indicate what efforts were taken to obtain a copy of the filed appeal from the Registry of this Tribunal. Hence the Appellant cannot be allowed to take of advantage of the NCLAT Rules for their carelessness and negligence.
9.Arguing that 321 days taken by the Appellant in refiling the appeal is almost the same time which is prescribed for completing CIRP under the IBC, the Learned Counsel for the Respondents vehemently asserted that any condonation of refiling delay of over 300 days would undermine the time-bound nature of CIRP under the Code. Furthermore, placing reliance on the judgement of the Hon’ble Supreme Court in Ebix Singapore Private Ltd vs Committee of Creditors of Educomp Solutions & Anr (2 SCC 401) it was submitted that allowing the belated refiling of the appeal particularly when CIRP is at an advanced stage in the present case, it would clearly vitiate the mandate for timebound resolution under the IBC. It was also submitted that the Hon’ble Supreme Court in V. Nagarajan v. SKS Ispat and Power Ltd. And Others (2022 2 SCC 244) has denounced delay in filing litigation and held the power to condone delay to be tightly circumscribed and conditional only upon showing sufficient cause, which is glaringly amiss in the present case. Reliance was also placed on judgements of the Hon’ble Supreme Court in National Spot Exchange Limited vs. Anil Kohli, 2021 SCC Online SC 716 and Oil and Natural Gas Corporation vs Joint Venture Of M/s Sai Rama, 2019 SCC OnLine Del 10456 in this regard.”
With that note, on the basis of the reasoning in our earlier judgment referred above and of the principles laid down above by the Principal Bench, the Application IA No. 296/2025 and IA No. 299/2025, seeking Condonation of Delay in refiling the appeal, in respective Company Appeal (AT) (CH) (Ins) No.106/2025 and Company Appeal (AT) (CH) (Ins) No.107/2025 would stand ‘rejected’ and as a consequence thereto, the ‘Appeals’ too would stand ‘dismissed’.