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Judgment
ORDER
25.09.2023: The present appeal was heard on merit on 04.09.2023. However, while dictating judgement it was notice that the appeal was not ripe for hearing in view of the fact that the main appeal was filed after the expiry of 45 days of limitation and in the appeal an Interlocutory Application i.e. IA No.596 of 2023 was filed for condonation of delay. Thereafter we directed to list the appeal under the caption ‘for orders’ on 20.09.2023. On 20.09.2023 the appeal was adjourned to 25.09.2023 so that learned counsel for the parties may address the court on Interlocutory application which has been filed for condonation of delay in filing the appeal. Since we are considering the condonation of delay application, there is no need to go into the merit of the case. However, summarily it can be recorded that appeal was filed against an order dated 21.10.2022 passed by the learned NCLT, Mumbai Bench, Court I. By the said order the learned NCLT had rejected MA No.1705/2019 which was filed in CP No.277/MB/2018. The CP No.277/2018 was filed by Union of India mainly after noticing the fact that fraud was committed by a company which was virtually controlled by one Mr. Neerav Modi and one another company. The fact remain that it was alleged that more than Rs.11000 crores was defrauded by accused person. After initiation of the proceedings on the basis of CP 227/2018 subsequently involvement of husband of the appellant namely Vipul Natvarlal Ambani had come to fore and he was made accused and taken into custody. It was noticed that a demat account was running in the joint name of Vipul Natvarlal Ambani, husband of appellant and appellant. Subsequently further application was filed by Union of India with a request to freeze the said account. Thereafter an application was filed by the appellant claiming that whatever securities were lying in the account was of the appellant not of her husbands’ contribution. However, Learned NCLT by the impugned order has rejected the prayer of the appellant. The appellant assailing the impugned order has filed the present appeal.
This is not in dispute that the appeal was filed belatedly and as such IA was filed for condonation of delay vide IA No.596/2023. For the first the appeal was taken up on 13.02.2023 on which date learned counsel for the appellant requested this Tribunal to allow him file hard copy of the certain documents of the NCLT which was allowed. Thereafter on 24.02.2023 again appeal was taken up and it was adjourned for filing of response to the reply of the respondents. On 08.05.2023 it was noticed by this Tribunal that condonation of delay application was filed in the present appeal and as such the matter was adjourned. Finally on 04.09.2023 learned counsel for the appellant addressed the Court on merit and order was reserved. The fact that the appeal was not ripe for hearing since the delay in filing the appeal was not condoned was not noticed by this Bench. Only when the order was being dictated it was noticed that condonation of delay application was not allowed and as such the appeal was directed to be listed on the question of condonation of delay. Before proceeding it would be appropriate to reproduce the IA No.596/2023 which has been filed for condonation of delay in filing the appeal. Same is reproduced as follows:-
“1.The appellant herein has filed the accompanying appeal under Section 421 of the Companies Act, 2013 arising out of order dated 21st October, 2022 passed under Section (s) 241 -242 of the Companies Act, 2013 in MA 1705/2019 in CP (IB)-277/MB/2018 by the Hon’ble NCLT, Mumbai Bench, Mumbai.
2.It is submitted that Section 421 of the Companies Act, 2013 provides that an appeal under the section may be filed within a period of forty five days from the date on which a copy of order of the Tribunal is made available to the person aggrieved. It further provides that the Hon’ble Appellate Tribunal may entertain an appeal after the expiry of the said period of forty five days for a further period of forty five days if it is satisfied that the Appellant was prevented by sufficient cause from filing the appeal.
3.The hearing of MA 1705/2019 concluded on 23rd August, 2022 and the same was reserved for orders. The operative part of the impugned order was pronounced inopen court on 21st October, 2022 and certified copy of the impugned order was applied for on 31st October, 2022 after the Tribunal reopened post Diwali vacations, and made available to the Appellant on 2nd November, 2022.
4.It is submitted if the said date that the order is made available to the aggrieved party in the instant case is taken to be 2nd November, 2022 after re-opening of the Hon’ble NCLT after Diwali vacations, there has been a minor, inadvertent delay of six days in filing of the present appeal.
5.If, however, the period from 22nd October, 2022 to 30th October, 2022 is not excluded in the computation of the period of limitation, then there is a minor delay of 42 days in filing the appeal. The delay has occurred not on account of any deliberate act, omission or negligence on the part of the appellant but because the impugned order was passed just before the Diwali Vacation and the appellant was travelling and was out of station from 24th October, 2022 to 18th November. It therefore took time for the appellant to co-ordinate with her lawyers and finalise the appeal due to the intervening holidays.
6.It is prayed that the delay of 42 days may kindly be condoned in the interest of justice. The appellatns submitted that the delay is unintentional and has been caused due to reasons beyond their control. It is therefore in the interest of justice that the delay is condoned and the appeal is heard and decided on merits otherwise the appellants will suffer irreparable injury and prejudice substantial loss and the whole purpose of filing this appeal will be defeated. The impugned order is also in the teeth of various judicial pronouncements of Tribunals, High Courts and the Hon’ble Supreme Court of India.
7.It is submitted that the appellant has a good case on merits and considerable prejudeice will be caused to the appellant if delay is not condoned. However, no hard will be caused to the appellant if delay is condoned.
8.It is, therefore, most respectfully prayed that this Hon’ble Appellate Tribunal may be pleased to allow this application, condone the delay of 42 days in filing the appeal and the appeal may be heard and decided on merits at an early date.”
On perusal of the aforesaid application it is evident that in para 3 the appellant has stated that the certified copy of the impugned order was applied for on 31.10.2022 and thereafter the certified copy of the impugned order was made available on 2.11.2022. The reasons for delay in filing the appeal has been explained as if the appellant was travelling and was out of station from 24th October, 2022 to 18.11.2022, whereas the impugned order reflects that the certified copy was applied for on 02.11.2022 and it was made available to the appellant on 03.11.2022. Meaning thereby that the facts disclosed in condonation of delay application is erroneous and contrary to the record. Moreover the reason assigned that the appellant was travelling and was out of station is also not a sufficient reason to persuade us to act upon such reason in condoning the delay in filing the appeal. Normally if delay is occurred in filing an appeal it is expected that the appellant may explain the delay on day to day basis. However, in the present case neither specific reason has been assigned nor correct statement has been made. In such situation as well as in the absence of showing any plausible reason which prevented the appellant to file appeal within time, we have no option but to reject the application for condonation of delay. Accordingly, IA No.596/2023 stands dismissed. Consequently the appeal too is dismissed. We may record that we have not dealt with in any manner on the merit of the case. The condonation of delay application stands dismissed not only on the ground of delay in filing the appeal but also for making incorrect statement in the condonation of delay application.
Accordingly IA stands dismissed and also the appeal too stands dismissed.