Regional Provident Fund Commissioner, EPFO vs Mr. Mohanan TS & Anr.

The Instant Company Appeal has been preferred by the Appellant being aggrieved, by against the Judgment/order of NCLT, Kochi dated 02^nd January 2024, passed in IA(IBC) No.520/KOB/2023 in IBA/24/KOB/2020, in which the Recall Application of the Appellant seeking to recall the earlier order of NCLT dated 25.01.2023 has been rejected for the reasons as given under:-

The present Company Appeal has been filed along with IA No.364 of 2024 whereby the Appellant has sought Condonation of 13 days of delay caused in filing the Appeal. In the said Delay Condonation Application, it has been pleaded by the Appellant that the delay caused in filing the appeal was because of the delay in supplying of the certified copy of the Order which was provided only on 14^th January 2024. In addition, he had to undergo certain codal formalities required in seeking appropriate approval from the Department, for preferring an Appeal against the Impugned Order and hence he submits, that the delay which has occurred is neither wilful nor wanton.

Under Law, a Statutory Organisation cannot be treated to be kept at different pedestal than that of normal/common litigant. The Law of Limitation would be equally binding upon them irrespective of nature/status of litigant. Therefore, as soon as the Appellant was made conscious of the Impugned Order, it was his responsibility, to obtained the certified Copy of the Order as per law, within time and to seek and obtain necessary approval from the competent authorities for preferring the Appeal within time. Having not done so, the reason given for delay in filing may not be taken as to be sufficient and particularly in the context when the earlier Application of the Appellant for rectification of the order already stood rejected, which means that the knowledge of such order would automatically be attributed to the appellant. But still taking a lenient view, in order to decide the lis on merits while exercising our inherent powers in an Appellate jurisdiction, the delay of 13 days caused in filing the Appeal was condoned. Consequently, IA No.364/2024 was allowed.

After allowing of Delay Condonation Application, the Learned Counsel was called upon to address the Appeal on its own merits. While putting challenge to the Impugned Order, primarily he argues that the Impugned Order would not be sustainable for the reason being, that the learned Adjudicating Authority while considering his IA(IBC) No.520/KOB/2023 in IBA No.24/KOB/2020 had rejected the same without assigning any reason as such, qua his application, which was the subject matter for consideration before the Adjudicating Authority. This argument as extended by the Learned Counsel for the Appellant, may not be acceptable by this Tribunal for the reason being that after culmination of the proceedings of the CIRP, the Resolution Plan, has already been approved, the CIRP has been successfully concluded on 31^st December 2021 and the Final Plan has already been submitted as observed in the Impugned Order under challenge. The Appellant submits that the said reason as assigned in the Impugned Order, may not be the exclusive reasons for rejecting his Application. But, this contention of Learned Counsel for the Appellant cannot be accepted by this Tribunal for the reason being that, it is an admitted case of the appellant that the Recall was preferred by the appellant, only after rejection of his application seeking rectification of the Judgment and the basis of preferring the Recall was on the ground which were very well available much prior in time when the Appellant had filed the Rectification Application which were apparently not agitated. Under the simple legal principles, the grounds which has been agitated by the Appellant in the Recall Application, which has been rejected vide impugned Order were the same grounds that were available to him when his Rectification Application was being filed and considered by the Learned Tribunal and later on dismissed and because he has chosen not to agitate them, he cannot agitate them at a later date.

Even otherwise, also, if we go through the Impugned Order under challenge, since the Resolution Plan has been already approved as back as on 31^st December 2021 and the same has been consequently implemented successfully, entertaining of a Recall Application at this stage and that too without any logical justifiable reasons will amount to be an abuse of process of rejuvenating and reviving the proceeding the entire Judicial exercise afresh. This may not be the intention of the legislature further the reason given in the Impugned order as rendered on the Recall Application, do not suffer from any legal error, which is contrary to the intention of law. Thus, the Company Appeal lacks merits and the same is accordingly dismissed.