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Judgment
ORDER
Oral Judgment: Justice Sharad Kumar Sharma, Member (Judicial)
The instant company appeal was preferred by the Appellant, before this Appellate Tribunal by filing the same on 25.02.2021. In the company appeal, the challenge given by Appellant was to the impugned order of 21.02.2020, that was rendered in MA/67/2020 in IBA/222/2019, in a proceedings that were held under Section 12A of the I & B Code, to be read with Rule 11 of the NCLT Rules.
The company appeal was listed and the same was dismissed for want of prosecution on 14.08.2024. Application to restore the Appeal was filed by the Appellant on 12.09.2024. The Appeal was listed as defective on 27.02.2025. However, despite sufficient time having been given, the defects were not rectified. Hence, under Rule 26 (3) & (4) of the NCLAT Rules, the company appeal was dismissed on 27.02.2025. Seeking the recall of the order dated 27.02.2025, the Appellant had filed an application, being Restoration Application No. 19/2025. The said application was listed for orders on 25.06.2025. However, as none appeared for the Appellant on the said date, Restoration Application No. 19/2025 was dismissed for want of prosecution. The instant application, being IA No.1535/2025, has now been filed by the Appellant seeking the recall of the order dated 25.06.2025 passed in Restoration Application No. 19/2025.
Heard learned counsel for the parties on IA No.1535/2025, seeking for recall of the order dated 25.06.2025 as passed in Restoration Application No.19/2025, seeking recall of the order dated 27.02.2025. Having considered the reasons given in the recall application, and finding it to be reasonable and satisfactory, the restoration applications are allowed. The company appeal is restored to its original number.
With the consent of the learned counsel for the parties, since the prime consideration in the instant company appeal, is with regards to the determination of number of days of delay that has chanced to maintain the company appeal, we proceed to consider the company appeal on the aspect of limitation. The following dates would be relevant: -
The impugned order that was passed by the Ld. Tribunal is dated 21.02.2020
It is contended by the Appellant that, the said order was not uploaded. Hence, he filed MA No.101/2020 in MA No.67/2021, before the Ld. Adjudicating Authority, mentioning the fact of non-receipt of the impugned order. Accordingly, the Tribunal passed an order dated 04.01.2021 on MA No.101/2020, holding thereof that, when the Tribunal made an enquiry, it was informed that, the IRP was already in receipt of the order much earlier and the Tribunal observed that, the Tribunal does not see any plausible reason as to why the Appellant has not received the certified copy of the order.
The relevant part of the order dated 04.01.2021 is extracted hereunder: -
“However, upon a query posed by this Tribunal to Learned Counsel for the Applicant in MA/67/2020 being the IRP, the Learned IRP of the Corporate Debtor confirms receipt of the order of this Tribunal dated 21.02.2020. In the circumstances, we are unable to understand how the Applicant present in MA/101/2020, being common in MA/68/2020 has not received the order copy.”
From the aforesaid observation it seems that, the Appellant was trying to make out concocted ground of non-receipt of the certified copy of the order because when one of the parties to the proceedings (i.e., the IRP) has already received the order, we see no reason as to why the Appellant would be alone deprived of receipt of the order, which necessitated him to file the application (MA/101/2020) before the Tribunal.
Be that as it may, even if for the time being we accept the stand of the Appellant that, they were not in receipt of the copy of the impugned order which made them to file an application, expressing the grievance of non-receipt of the order, we find that the Ld. Tribunal had taken up the matter on 04.01.2021, and disposed of the said IA, as would be apparent from the order extracted above. At least it has to be presumed that, as on 04.01.2021, the Appellant got the knowledge of the order dated 21.02.2020. If that be so, if 30 days is determined from the said date, the same would be expiring on 03.02.2021 and if we add additional 15 days of condonable period as provided under the proviso to Section 61(2) of the I & B Code, is taken into consideration, then that would be ending on 18.02.2021. However, the company appeal was preferred by the Appellant before this Appellate Tribunal only on 25.02.2021, it will be barred by limitation.
In that view of the matter, the company appeal would be barred by limitation and the same would accordingly stand ‘dismissed’.
All interlocutory applications would stand ‘closed’.