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Judgment
ORDER
Heard the Learned Senior Counsel for the ‘Petitioner/Appellant’ in I.A.No.90/2024 in Comp. App. (AT)(CH)(Ins) No.27 of 2024 [Condone Delay Application].
According to the ‘Petitioner/Appellant’, the IA/90/2024 in Comp. App. (AT)(CH)(Ins) No.27 of 2024 is filed seeking to condone of delay of 15 days in preferring the instant ‘Appeal’, in respect of the ‘Impugned Order’ dated 24.08.2023 made in CP(IB) No.113/BB/2022 passed by the ‘Adjudicating Authority/National Company Law Tribunal, Bengaluru Bench.
The Learned Senior Counsel for the ‘Petitioner/Appellant’ points out that the ‘Adjudicating Authority’/Tribunal’, had passed the ‘Impugned Order’ on 24.08.2023 in CA(IB) No.113/BB/2022 by not considering the Section 7 Application filed by the 1st Respondent, which was grossly time barred, as the same was preferred with a delay of more than a year, from the ‘date of default’ and overlooked the fact that the ‘Petitioner/Appellant’ is in a position to deliver the ‘Flats’ and fulfil the obligations, as it has got a ‘Financier’, who is capable of completing the said Project. However, the ‘Adjudicating Authority’, had not considered in detail whether there is an ‘existence of debt’ or not and thereby admitted the petition and initiated ‘CIRP’ Proceedings, against the ‘Appellant’ when the ‘Home Buyers’/ ‘allottees’ have a viable option to get out of the current situation.
It is represented on behalf of the ‘Petitioner/Appellant’ before the intimation of the proceeding and ‘Impugned Order’ by the 2nd Respondent, the ‘Petitioner/Appellant’ was ‘unaware of the proceedings’, before the ‘Adjudicating Authority/Tribunal’. However, as soon as the communication was made by the 2nd Respondent on 23.09.2023, the ‘Petitioner/Appellant’ had endeavoured to track and scrutinise all the particular documentation, in regard to the project, to cross check whether the communication provided by the 2nd Respondent was accurate or otherwise.
The other reason attributed on behalf of the ‘Petitioner/Appellant’ is that as mentioned in the ‘Memorandum of Appeal’, various authorities were pursuing legal actions, against the ‘Petitioner/Appellant Company’, leading to the seizure of several properties and later, various raids, were conducted by the ‘Law Enforcement Authorities’, leading to all the documentation of the ‘Petitioner/Appellant/Company’ being misplaced and lost. However, the ‘Petitioner/Appellant’ took sometime to trace all the necessary documents and successfully they tracked the same and ultimately due to the various current events and developments as mentioned supra, the ‘instant Appeal’ came to be e-filed on 07.11.2023. In this process, there has occasioned a delay of 15 days in preferring the instant ‘Appeal’, which is neither wilful nor wanton, but due to the aforesaid bona fide reason. Hence, a prayer is made on behalf of the ‘Petitioner/Appellant’ to condone the purported delay of 15 days in preferring the condone delay IA/90/2024 in Comp. App. (AT)(CH)(Ins) No.27 of 2024, on the file of this ‘Appellate Tribunal’.
According to the ‘Office of the Registry’, the purported delay of 15 days as projected by the ‘Petitioner/Appellant’ in IA/90/2024 in Comp. App. (AT)(CH)(Ins) No.27 of 2024 is an ‘incorrect one’ and according to the ‘Office of the Registry’, there has occasioned a delay of 45 days in preferring the ‘Appeal’ [beyond 30 days period, as envisaged under Section 61(1) of the Insolvency and Bankruptcy Code, 2016].
Conversely, it is the submission of the Learned Counsel for the ‘1st Respondent’/‘Apartment Buyers Consumer Association’ that the ‘order’ of the ‘Adjudicating Authority/Tribunal’, Bengaluru Bench dated 15.02.2023, in respect of the project “Dreamz Samhita”, was assailed through an ‘appeal’ before this ‘Tribunal’ in Comp. App. (AT)(CH)(Ins) 151/2023, and the 1st Respondent, had filed its objections to the said ‘Appeal’, and made a reference to the ‘instant Company Petition viz. CP(IB)/110/BB/2022’. Added further, it was mentioned by the 1st Respondent, that the ‘Petitioner/Appellant’. was not appearing, in CP(IB)/110/BB/2022 when the ‘Petitioner/Appellant’ found it convenient to appear before this ‘Appellate Tribunal’, and further objections were filed by the 1st Respondent on 05.07.2023 in Comp. App. (AT)(CH)(Ins) 151/2023.
It comes to be known that the ‘Petitioner/Appellant’, had filed ‘Rejoinder’ to the said ‘objections’ on 11.08.2023. In reality, the Petitioner/Appellant’ in paragraph 38 had stated as under:
“The contents of paragraph No.41 are shocking in nature and are also denied in an extent that the Appellant or any of its representative were made aware of another proceeding which is initiated by the Respondent No.1. It is pertinent to mention herein that the counsel for the 1st Respondent must be put to strict proof of the service of notice to the Appellant or any intimation to the Appellant about CP(IB) No.113/BB/2022. That the Appellant upon perusal of the reply filed by Respondent before this Hon’ble Bench was at that time only made aware of the said petition pending for adjudication before the Hon’ble NCLT Bengaluru Bench. When the Appellant was made aware of the present petition before the NCLT, immediately the process of procuring documents and other applications have been initiated by the Appellant and their advocates. Therefore, the mala fide and ill intentions of the Respondent No.1 are clear from the fact that even being aware of the details of the advocates, the Respondent No.1 never informed them about the said objection”
The emphatic plea taken on behalf of the 1st Respondent is that the ‘Petitioner/Appellant’ became ‘aware’ about the filing of CP(IB) No.113/BB/2022 on 11.08.2023, when the ‘Petitioner/Appellant’ filed ‘Rejoinder’ before this ‘Tribunal’, in respect of ‘Dremzs Sneh Project” is not a project and the ‘Petitioner/Appellant’ had confirmed the same in the ‘Rejoinder’, filed before this ‘Tribunal’ prior to the ‘Impugned Order’ being pronounced on 24.08.2023, as such, the assertion made by the ‘Petitioner/Appellant’ that he was aware about the ‘order’ only on 23.09.2023 is an incorrect, false, baseless one and contrary to records.
In fact, the substance of the plea taken on behalf of the 1st Respondent, is that the delay is not ‘15 days’, as stated by the ‘Petitioner/Appellant’ but 45 days over and above the due date viz. 23.09.2023 and in fact, ‘notices’ on ‘Creditors Meetings and Minutes’ were sent to the ‘Petitioner/Appellant’ by the ‘Resolution Professional’ and that the ‘Petitioner/Appellant’ had not chosen to attend the ‘CoC meeting’ that took place on 04.10.2023, 27.10.2023 and 25.11.2023 respectively, in order to approach the ‘Home Buyers’, to redress their grievances. Indeed, the ‘Appellant’ was watching the proceedings from the side line and was appearing, only after the ‘Order of admission’ was passed.
The other contention advanced on the side of the ‘Petitioner/Appellant’ is that the ‘Petitioner/Appellant’ had ‘remained absent’ from the ‘registered office of the ‘Corporate Debtor’ and the ‘Corporate Debtor’ was served at its ‘Registered Office’. In fact, the ‘Petitioner/Appellant’ ‘does not have any right’ to be served individually in respect of matters pertaining to the ‘Corporate Debtor’. In any event, the ‘Balance of convenience’ is not in favour of the ‘Petitioner/Appellant’ and hence the 1st Respondent has prayed for the ‘Dismissal’ of IA/90/2024 filed by the ‘Petitioner/Appellant’.
The Learned Counsel for the 2nd Respondent informs this ‘Tribunal’ that she is adopting pleas/arguments advanced on behalf of the 1st Respondent, in entirety.
To be noted, Section 61(1) of the Insolvency and Bankruptcy Code, 2016, provides for ‘any person’ aggrieved by the ‘order’ of the ‘Adjudicating Authority’ to prefer an ‘Appeal’, before the National Company Law Appellate Tribunal and every ‘Appeal’ in terms of Section 61(2) of the Insolvency and Bankruptcy Code, 2016 shall be filed under sub Section (1) within 30 days, before the ‘National Company Law Appellate Tribunal’, and the ‘Appellate Tribunal’ may allow an ‘Appeal’ to be filed, after the expiry of the said period of 30 days, if it is satisfied that there was ‘sufficient cause’ for not filing the ‘Appeal’, but such period shall not exceed 15 days.
The Learned Counsel for the 2nd Respondent, in this connection, adverts to the decision of Hon’ble Supreme Court of India in National Spot Exchange Ltd Vs Anil Kohli, Resolution Professional for Dunar Foods Ltd, reported in (2022) 11 SCC 761 B 4 wherein at paragraphs 20 and 21 it is observed as under:
20.“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.
21.In view of the aforestated 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 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.”
As far as the present case is concerned, that the purported delay of 15 days [after getting into the knowledge of the ‘Impugned Order’] comes around 45 days (30 + 15 days) may not be a correct one, because of the fact that the ‘Office of the Registry’ has clearly indicated in the ‘defects column’ that the delay which had occurred in the ‘instant case’ was, after the expiry of 30 days (viz. beyond 30 days) but exactly stated, it is around 45 days after 30 days, which is not a condonable one by any means, especially in the teeth of ingredients Section 61(2) of the Insolvency and Bankruptcy Code, 2016.
On a careful consideration of respective contentions and in view of the crystalline fact that the ‘law of limitation’ may affect a particular person harshly but the same has to be applied with all its ‘rigour’ when the statute so prescribed. As a matter of fact, in the decision of the Hon’ble Supreme Court of India in “National Spot Exchange Ltd Vs Anil Kohli, Resolution Professional for Dunar Foods Ltd. (Resolution Professional)” reported in (2022) 11 SCC 761 at Pages 762 and 763 it is observed as under:
“If there is any hardship, it is for the legislature to amend the law, and that the Court cannot be called upon to discard the cardinal rule of interpretation for the purpose of mitigating such hardship. If the language of an Act is sufficiently clear, the Court has to give effect to it, however inequitable or unjust the result may be. The words, “dura lex sed lex” which mean “the law is hard but it is the law” may be used to sum up the situation. Therefore, even if a statutory provision causes hardship to some people, it is not for the Court to amend the law. A legal enactment must be interpreted in its plan and literal sense, as that is the first principle of interpretation. (Paragraph 15)
“Inconvenience is not” a decisive factor to be considered while interpreting a statute. A result flowing from a statutory provision is never an evil. A Court has no its operation. A statute must of course be given effect to whether a Court likes the result or not. (Paragraph 15)
Therefore, it is evident that the hardship caused to an individual, cannot be a ground for not giving effective and grammatical meaning to every word of the provision, if the language used therein, is unequivocal. (Paragraph 15)
In a case where the statutory provision is plain and unambiguous, the court shall not interpret the same in a different manner, only because of harsh consequences arising therefrom.(Paragraph 15.2)”
At this stage, this ‘Tribunal’ optly points out the decision of the Hon’ble Supreme Court of India “National Spot Exchange Ltd Vs Anil Kohli, Resolution Professional for Dunar Foods Ltd.” reported in (2022) 11 SCC 761 at Pages 763 wherein at paragraph 15.2, it is observed as under:
“What is administered in courts is justice according to law, and considerations of fair play and equity however important they may be, must yield to clear and express provisions of the law. Equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law. It is now well settled that when there is a conflict between law and equity the former shall prevail. Equitable considerations have no place where the statute contained express provisions. The period of limitation statutorily prescribed has to be strictly adhered to and cannot be relaxed or departed from for equitable considerations.(Paragraph 15.2)”
In fact, the Hon’ble Supreme Court in National Spot Exchange Ltd. case reported in (2022) 11 SCC 761 at page 778 at paragraph 20 had observed as under:
“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.”
It is to be remembered that Insolvency and Bankruptcy Code, 2016 is a self-contained and an inbuilt code. In this connection, it is not out of place for this ‘Tribunal’ to recall and recollect the decision in “Latham v R. Johnson & Nephew Ltd., reported in (1913) 1 KB 398 wherein Farwell LJ had observed as under:
“We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment: sentiment is a dangerous will on the wisp to take as a guide in the search for legal principles.”
Looking at from any angle, in the instant case on hand, keeping in mind the ingredients of Section 61(1) of the Insolvency and Bankruptcy Code, 2016 which may cause hardship or inconvenience to the ‘Petitioner/Appellant’, the rudimentary rule of interpretation is not to be ignored by this ‘Appellate Tribunal’. ‘The ‘inconvenience’ is not a decisive factor, to be considered, while interpreting a statute, which is to be borne in mind by this ‘Appellate Tribunal’ at the time of passing the ‘Impugned Order’ relating to the condone delay application.”
Viewed in the above backdrop, this ‘Tribunal’, comes to an cocksure, inescapable, irresistible and inevitable conclusion that there has occasioned a delay of more than 45 days beyond (after 30 days, as prescribed under Section 61(1) of the Code) and the computation of 15 days, as made mention of by the ‘Petitioner/Appellant’ in IA/90/2024 in Comp. App. (AT)(CH)(Ins) 27 of 2024 is not a correct one and taking note of the fact that the ‘Office of the Registry’ had clearly made a mention that the ‘delay’, after the expiry of 30 days, is more than 45 days (beyond 30 days), section 61(2) of the Insolvency and Bankruptcy Code, 2016 will have to be strictly adhered to by this ‘Appellate Tribunal’ and there cannot be any relaxation or any deviation to be made by this ‘Appellate Tribunal’ in following the provisions of the Insolvency and Bankruptcy Code, 2016 in ‘true letter and spirit’. Further, however, hard the law may be but it is to be used only in a way that is to be interpreted in a plain, harmonious and in a liberal manner, which is the recognised principle under the ‘Principles of Interpretation of Statute’.
In view of the foregoing, the IA/90/2024 (Condone Delay Application) in Comp App. (AT)(CH)(Ins) No.27 of 2024 preferred by the ‘Petitioner/Appellant’ sans merits and it fails.
In fine, the instant ‘Appeal’ IA/90/2024 in Comp App. (AT)(CH)(Ins) No.27 of 2024 is ‘dismissed.’
Comp. App. (AT)_(CH) (Ins) No.27 of 2024
In view of the fact that this ‘Tribunal’ has dismissed the IA/90/2024 (Condone Delay Application) in Comp App. (AT)(CH)(Ins) No.27 of 2024, in regard to preferring of the ‘Appeal’ filed by the ‘Petitioner/Appellant’, as a logical corollary, the main Company Appeal (AT)(CH)(Ins) No.27 of 2024, is not entertained by this ‘Tribunal’ and the same is rejected. No costs.