AI Structured Summary
Not yet generated for this judgment
Judgment
ORDER
04.03.2024: These two Company Appeal (AT) (Ins.) Nos. 390-391 of 2024 have been filed by the Corporate Debtor challenging the two orders passed by the Adjudicating Authority dated 11.10.2023 and 28.11.2023 in CP (IB) No.239/CHD/HRY/2023. Appellant is a Corporate Debtor who appeared before the Adjudicating Authority in Section 7 application filed by the Union Bank of India on 11.10.2023
The Delay Condonation Application has been filed in these Appeals. Appeal has been e-filed on 10.02.2024 challenging both the orders dated 11.10.2023 and 28.11.2023. The ground taken by the Appellant is that after the order was passed, Appellant filed a Writ Petition No.28528 of 2023 before the Punjab & Haryana High Court which Writ Petition was dismissed on 08.01.2024 against which SLP was filed on 23.01.2024 which too was dismissed on 05.02.2024 and thereafter this Appeal has been filed on 10.02.2024.
Learned Counsel for the Appellant submits that the Appellant is entitled for the benefit of Section 14 of the Limitation Act and period during pendency of Writ Petition and SLP was pending should be excluded.
Learned Counsel for the Respondent submits that even if the period is excluded, the Appeal filed against the order dated 11.10.2023 is beyond 15 days after expiry of the limitation and after exclusion of the period during Writ Petition and the SLP was pending. The Company Appeal (AT) (Insolvency) No.390 of 2024 being filed beyond 15 days after expiry of limitation is dismissed as barred by time. Company Appeal (AT) (Insolvency) No.391 of 2024 which was filed against the order dated 28.11.2023 has been filed after expiry of limitation but within condonable period of 15 days. We find sufficient ground to condone the delay which is within the condonable period in Company Appeal (AT) (Insolvency) No.391 of 2024.
Now coming to the merits, Counsel for the Appellant submits that the Adjudicating Authority by the said order has directed the Appellant to file reply and has also relied the prima facie order passed on 11.10.2023. Counsel for the Appellant submits that the application was barred by time and the Adjudicating Authority cannot ask the Appellant to submit to the jurisdiction before the Adjudicating Authority when the application was beyond time. It is submitted that the question of limitation is jurisdictional fact and when the application is barred by time, Adjudicating Authority has no jurisdiction to consider the application.
We have considered the submissions of the counsel for the parties and perused the record.
The order dated 28.11.2023 is to the following effect:-
“It is stated by learned counsel for the Respondent/Corporate Debtor that an application raising the objection on maintainability regarding limitation of the petition has been filed. But the said issue is already prima facie decided vide order dated 11.10.2023 and the learned counsel for the Respondent is directed to file the reply with a copy in advance to the counsel opposite within two weeks. Rejoinder thereto, if any, be filed with a copy in advance to the counsel opposite within next one week. It is also made clear to learned counsel for the Respondent/Corporate Debtor that it is the last opportunity to file the reply. Let the matter be listed on 08.01.2024.”
The Adjudicating Authority has referred to earlier order dated 11.10.2023 where Adjudicating Authority expressed its prima facie opinion with regard to limitation as well as on the default. When the Adjudicating Authority has granted time to the Respondent to file reply, it is always open for the Corporate Debtor to raise all issues including the issue of limitation and the issue of default. We only observe that the prima facie view which was expressed by the Adjudicating Authority shall not come in the way of the Adjudicating Authority in deciding the issue after hearing the Corporate Debtor who is permitted to file reply. We see no reason to entertain the appeal filed against the order dated 28.11.2023.
With the observations as made above, Company Appeal (AT) (Insolvency) No.391 of 2024 is disposed of.
Learned Counsel for the Appellant lastly submitted that this Court may direct the Adjudicating Authority to decide the question of limitation as preliminary issue. We are of the view that all issues including the issue of limitation is to be decided after hearing the Corporate Debtor and no direction can be issued for deciding the same as preliminary issue as prayed by the Appellant. Prayer is rejected.