State Bank Of India vs Khagaria Purnea Highway Private Limited & Ors.

Ashok Bhushan, J:

I.A. No. 3412 of 2022 has been filed by the Appellant praying for condonation of delay in filing the Appeals. These two Appeals have been filed against the Orders dated 08^th June, 2022 and 31^st August, 2022. These Appeals have been filed on 12^th September, 2022. In so far as the Order dated 31^st August, 2022 is concerned, the Appeal is within time. However, in reference to the Order dated 08^th June, 2022, there is delay in filing the Appeal.

In the Application filed under Section 5 of the Limitation Act seeking Condonation of Delay it is stated that the Respondent herein filed an I.A. No. 2691/2022 against the Appellant (SBI) and National Highway Authority of India (NHAI), which Application was heard on 08^th June, 2022 on the preliminary issue regarding the maintainability. The Applicant’s case is that on 08^th June, 2022, Orders were reserved and after 08^th June, 2022, Learned Counsel for the Appellant checked on daily basis for a copy of the Order on the website of the Authority and he became aware about the Order only on 01^st August, 2022 since 08^th June, 2022 the Company Petition along with other I.As were listed on different dates but the Application I.A. No. 2691/2022 was not listed since the last order was never uploaded on the website. Although, next date fixed in the Application was 06^th July, 2022 but Application I.A. No. 2691 of 2022 was never listed. After coming to know about the Order, the Appeal has been filed and Appellant’s case is that there is delay of 13 days in filing the Appeal which need to be condoned.

The Delay Condonation Application came for hearing before this Tribunal on 26^th September, 2022, on which date, following order was passed:

In pursuance of the Order of this Tribunal dated 26.09.2022, a Report has been submitted by the Registrar of the National Company Law Tribunal (NCLT). The Registrar of the NCLT has sent an Email dated 13^th October, 2022 to the Registrar of NCLAT. The Report mentions following:

The Registrar of NCLT in his Report has stated that matter was listed on 08^th June, 2022 and was heard by the Principal Bench and was uploaded on 29^th July, 2022. Vide Order dated 26.09.2022, Report was called for from the Registrar. We have clearly asked with regard to the status of the Order dated 08^th June, 2022 and date of uploading and other relevant facts. The Report sent by the Registrar of NCLT only mentions that case was listed on 08^th June, 2022 and was heard by the Principal Bench and was uploaded on 29^th July, 2022.

The submissions which has been pressed by the Learned Counsel for the Appellant is that on 08^th June, 2022, Application was heard on the preliminary issue but the Order was not pronounced on the said date. It is not the case that Order was reserved on any earlier date and pronouncement was made on 08^th June, 2022. According to the Report of the NCLT that Order was itself uploaded on 29^th July, 2022 i.e. more than five weeks after the date when the matter was heard.

Learned Counsel for the Respondent has only emphasized on the fact that the Appeal has to be filed within 30 days from the date of the Order impugned. Learned Counsel for the Respondent has also submitted that detailed arguments were made on 08^th June, 2022. Affidavit filed in the Reply, does not mention that Order was dictated in the open Court and was pronounced on the same date i.e. 08^th June, 2022. In paragraph 09 of the Reply, following has been stated:

Learned Counsel for the Respondent submits that in absence of any material submitted along with Application by the Applicant, to prima facie demonstrate that Order was not available on 08^th June, 2022 and was available thereafter, the Appellant cannot claim extension of limitation. The Respondent is asking the Appellant to prove a negative fact by giving evidence. The Appellant has categorically mentioned that arguments were heard on 08.06.2022 and according to the Appellant, Order was reserved whereas the Respondents submit that preliminary objection was rejected but neither in the Report submitted by the Registrar NCLT nor in the Affidavit of Reply, it is stated that order was dictated in the open Court on 08^th June, 2022 and Order was made available to the parties. We cannot throw aside the submissions of the Appellant that they were under impression that Order was reserved on 08^th June, 2022 which order came to be uploaded on 29^th July, 2022.

From the facts and circumstances which have been brought on record and the Report of the Registrar, the mere mentions of the words “Order pronounced on 08^th June, 2022” is not sufficient to prove that Order was made available on 08^th June, 2022. The present is case where Appellant submits that arguments were heard on 08^th June, 2022 and Orders were reserved. They were not aware of the Order till it was uploaded hence there was no occasion for filing an Appeal by them. Reliance has been placed by the Learned Counsel for the Respondent in “V. Nagarajan Vs. SKS Ispat and Power Limited & Ors.” [(2022) 2 SCC 244] decided by Hon’ble Supreme Court on 22.10.2021. In the above case, the Appellant was present before the NCLT when the Interim Relief was denied and Miscellaneous Application was dismissed. The Court was of the view that since a copy of the Order was not applied immediately the Appellant was not entitled to take any benefit of the fact that Order was uploaded on 12^th March, 2020. The present is a case where Appellant cannot be blamed for not applying the certified copy of the Order dated 08^th June, 2022 since according to the Appellant, the Order was not pronounced nor it was uploaded although Appellant was present in the Hearing and his Learned Counsels participated in the Hearing raising objection regarding the maintainability of the Application. There cannot be any dispute to the law laid down in the “V. Nagarajan” (supra). The facts and circumstances of the present case are entirely different. Appellant’s case is that Order was reserved on 08^th June, 2022 and was not made available and from the Report which we have called for from Registrar NCLT it has not come to notice that Order was made available, neither Registrar in his Report nor Respondent in the Reply have stated that Order was dictated in the open Court on 08^th June, 2022 and was made available on 08^th June, 2022.

We are satisfied that present is a case where the Appeal cannot be thrown out on the ground of limitation. After order became available on 29^th July, 2022, the Appeal has been filed within 45 days from the date when Order was made available to the Appellant. Order was made available on 29^th July, 2022 and 30 days’ limitation period came to an end on 28^th August, 2022 and within 15 days thereafter, the present Appeal has been filed on 12^th September, 2022. We, in exercise of our jurisdiction under Section 61(2) proviso of the Code, find it fit case to condone the delay which is less than 15 days. In view of the above, I.A. No. 3412 of 2022 is allowed. Delay in filing the Appeal is condoned in exercise of our jurisdiction under Section 61(2) proviso of the Code.

List these Appeals “For Admission” on 07^th November, 2022.