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Judgment
ORDER
[Per: Shreesha Merla, Member (Technical)]
IA No. 1022/2023 in Company Appeal (AT) (CH) (Ins) No. 337/2023, is preferred by the Applicant / Appellant herein, seeking to condone the delay of 85 days in re-filing on the ground that there was a communication gap between the Clerk and the Registry on account of the wedding of the Clerk, coupled with technical difficulty associated with filing and tracking the e-filing portal and that the Applicant came to know about the delay in re-filing after receipt of communication from the Registry on 27/02/2023.
IA No. 1020/2022 in Company Appeal (AT) (CH) (Ins) No. 337/2023, is preferred by the Applicant seeking condonation of delay of 15 days in filing the Appeal on the grounds that the Impugned Order is an ex-parte Order; that the Company has been struck off and without the same having been restored the Impugned Order was passed; that the date of the Impugned Order is 01/09/2022 but the Applicant had come to know about the Order only on 03/10/2022 after receiving communication from the Interim Resolution Professional (IRP) and filed the Appeal on 15/10/2022 and therefore, the delay is neither wilful nor wanton and requires to be condoned, else the Impugned Order being devoid of merit would cause irreparable harm to the Applicant / Appellant.
Since all the Applications seeking condonation of delay in re-filing and filing of the Appeal deal with common facts, they are being disposed of by this common Order.
The Learned Counsel for the Applicant / Appellant strenuously contended that Notice was never received by the Applicant / Appellant herein and that an ex-parte Order was passed on merits and therefore, the Applicant / Appellant were unaware of the Impugned Order and sought for condonation of delay in both re-filing and filing of the Appeal.
The Learned Counsel for the Respondent argued that the ‘Adjudicating Authority’ had ordered ‘Notices’ to all the Parties on three occasions (with two paper publications) and ‘Notices’ were delivered to Assori Narasimhan, Satyan Kasturi, Acolyte Soft Private Limited, Clean Switch India Private Limited and Enterprise Business Solutions Private Limited. The Learned Counsel for the Respondent drew our attention to the fact that the address of Badri Kasturi and Connect Wind (India) Private Limited, mentioned in the ‘Notice’ sent by the Counsel and the addresses of the aforenoted two parties mentioned in the Memo of Parties in this Appeal is one and the same. It is argued by the Learned Counsel that there is no ‘sufficient cause’ to condone the delay and that an Application for condonation of delay should not be dealt with in a routine manner on the basis of individual philosophy which is subjective. The Learned Counsel for the Respondent also placed reliance on Rule 26 of NCLAT Rules, 2016, in support of his submission that the numbering of the Appeal in itself is not sustainable. Rule 26 of NCLAT Rules, 2016 reads as hereunder :
“ 26. Endorsement and scrutiny of petition or appeal or document.-… … .
(2)If, on scrutiny, the appeal or document is found to be defective, such document shall, after notice to the party, be returned for compliance and if there is a failure to comply within seven days from the date of return, the same shall be placed before the Registrar who may pass appropriate orders.
(3)The Registrar may for sufficient cause return the said document for rectification or amendment to the party filing the same, and for this purpose may allow to the party concerned such reasonable time as he may consider necessary or extend the time for compliance.
(4)Where the party fails to take any step for the removal of the defect within the time fixed for the same, the Registrar may, for reasons to be recorded in writing, decline to register the appeal or pleading or document.”
A perusal of the record of the Registry shows that the Appeal was e-filed on 15/10/2022. It is the contention of the Learned Counsel for the Applicant / Appellant that having been set ex-parte before the Adjudicating Authority, they were unaware of the Order till 03/10/2022 when the IRP had sent communication of the same, the Appeal could not be filed within the statutory limit of 30 days, and there was a delay of 15 days from the date of the Impugned Order. At this juncture, it is relevant to mention that the CIRP was initiated on 13/08/2019, the ‘Adjudicating Authority’ had directed on 31/03/2021 to publish ‘Notice’ in the newspapers and the first service vide paper publication was undertaken on 23/04/2021 in ‘Business Standard’, ‘The Hindu’ and ‘Andhra Prabha’. Additionally, the second service was sent to the Respondents through Speed Post on 26/11/2021 and proof of service was also filed before the ‘Adjudicating Authority’. The ‘Notices’ sent to Badri Kasturi and Connect Wind (India) Private Limited, were returned with an endorsement ‘Item Returned, no such person’, though the address in this Appeal and the address to which the Notices were sent is one and the same. On 24/12/2021, the Liquidation Order was passed and on 17/02/2022 the ‘Adjudicating Authority’ had directed for service of ‘Notice’ to Badri Kasturi and Connect Wind (India) Private Limited, and PG Renewables through Paper publication which was effected on 27/04/2022. The final Impugned Order was passed on 01/09/2022 and it is the case of the Applicant / Appellant that Notice was received from the Liquidator on 13/09/2022. Section 61 of the IBC, 2016 referring to the limitation period for filing an Appeal reads as follows:
“ 61. Appeals and Appellate Authority … … .
(2)Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: PROVIDED that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days.”
There are no substantial grounds to support to the contention of the Learned Counsel for the Applicant / Appellant that the Applicants / Appellants were unaware of the Order having regard to the fact that there were two paper publications made and ‘Notices’ were ‘served’ to R2, R3, R4, R5 & R7 as recorded by the ‘Adjudicating Authority’ in Para 4 of the Impugned Order. The Hon’ble Apex Court in the matter of ‘Esha Bhattacharjee Raghunathpur Nafar Academy’ in [(2013) 12 SCC 649] has held as follows:
“21.1.(i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2.(ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3.(iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4.(iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5.(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6.(vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7.(vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8.(viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9.(ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10.(x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11.(xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12.(xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13.(xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22.2.(b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.1.(a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.3.(c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4.(d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.”
The Hon’ble Supreme Court in the aforenoted Judgment has clearly laid down that an Application for condonation of delay should not be dealt with, in a routine manner on the base of individual philosophy which is basically subjective. In the instant Case, it is seen that there is an inordinate delay in re-filing also. As per the Report of the Registry, defects were intimated and the file was returned on 07/12/2022 but the Applicant had refiled the same only on 31/03/2023 with a delay of 115 days. The contention of the Learned Counsel for the Applicant / Appellant that the delay is only 85 days is incorrect. Be that as it may, there is no explanation for this delay except for stating that ‘there was a communication gap between the Clerk and the Registry on account of the wedding of the clerk coupled with technical difficulty associated with filing and tracking in the e-filing portal’. We do not find this explanation ‘a sufficient cause’ and this Tribunal is of the view that the reason cited are not ‘adequate’ to condone the inordinate delay of 115 days in refiling. This Tribunal is of the earnest view that despite service of ‘Notice’ and two paper publications as noted by the ‘Adjudicating Authority’ the Applicants / Appellants have not chosen to appear before the ‘Adjudicating Authority’ and now cannot state that they were unaware of the Order, specifically having regard to the fact that two of the addresses to whom the ‘Notices’ were returned, unserved are one and the same given in the Memo of Parties in the Appeal. This Tribunal is not satisfied with the explanation furnished and therefore, the Applications seeking condonation of delay in refiling as well as the delay in filing of the Appeal are dismissed.
For all the foregoing reasons, IA Nos. 1020, 1022/2023 in Company Appeal (AT) (CH) (Ins) No. 337/2023, IA Nos. 1024, 1026 /2023 in Company Appeal (AT) (CH) (Ins) No. 338/2023, IA Nos. 1029, 1031/2023 in Company Appeal (AT) (CH) (Ins) No. 339/2023, IA Nos. 1034, 1045/2023 in Company Appeal (AT) (CH) (Ins) No. 340/2023, IA Nos. 1037, 1038/2023 in Company Appeal (AT) (CH) (Ins) No. 341/2023 & IA No. 1041/2023 in Company Appeal (AT) (CH) (Ins) No. 342/2023 are dismissed accordingly. As a corollary, in view of the Orders passed in the aforenoted Applications, Company Appeal (AT) (CH) (Ins) Nos. 337, 338, 339, 340, 341 & 342/2023 are dismissed. No Order as to Costs. All connected pending Interlocutory Applications, if any, are closed.