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Judgment
O R D E R
Per: Justice Rakesh Kumar Jain:
This order shall dispose of I.A. No. 2233 of 2023, filed for seeking condonation of delay of 14 days in filing of the present appeal.
The appeal has been filed against the order dated 06.03.2022, passed by the Adjudicating Authority (National Company Law Tribunal, Ahmadabad Bench, Court No. I) by which in I.A. No. 682 of 2022 filed in CP (IB) No. 177/NCLT/AHM/2020, the Adjudicating Authority has directed fresh constitution of CoC after holding that Harshit Shah son of Ambrish Shah is a related party to the Corporate Debtor and also changed the Resolution Professional (RP) of the Corporate Debtor.
At the time of preliminary hearing on 23.05.2023, the following order was passed:-
“1.Learned Counsel for the Appellant submits that the Application filed by the Respondent for reconstitution of the Committee of Creditors has been allowed holding Mr. Harshit Shah to be related hence related party to the Financial Creditor. Submission is that there is no material to hold Mr. Harshit Shah is related party nor any technical information was provided by Mr. Harshit Shah to make him related party under Section 524(m) and 524(h).
2.Submissions need scrutiny. Issue notice to the Respondents through Speed Post as well as Email. Requisites along with process fee, if not filed, be filed within two days.
3.Let Reply-Affidavits be filed within two weeks. Rejoinder may be filed within two weeks, thereafter. List this Appeal on 10th July, 2023. In the meantime, in pursuance of the Order impugned, the Committee of Creditors shall not be reconstituted.”
Whereas on 10.07.2023, the following order was passed:-
“Learned counsel for the Respondent seeks liberty to file hard copy of the Reply within a week. Two weeks for Rejoinder. List this Appeal on 07.08.2023. Appellant may also file Rejoinder in the delay condonation application.”
On 12.09.2023 the Court passed the following order:-
“1.This application is filed for condonation of delay of 14 days’ in filing the present appeal.
2.Needless to mention that Section 61(1) of the I& B Code, 2016 (for short ‘the Code’) gives a right of appeal to an aggrieved person against the order of the Adjudicating Authority whereas Section 61(2) of the Code prescribes a period of 30 days for filing the appeal. However, in case the period of 30 days expires and the appeal is not filed, a window of 15 days is also provided in the proviso to Section 61(2) of the Code.
3.The Appellant has to assign a sufficient cause to the satisfaction of the Appellate Authority for the condonation of delay.
4.In the present case, the aforesaid application has been filed assigning the reason that the Appeal could not be filed in time due to the bad health of the partner of the Appellant.
5.Although, at the time of preliminary hearing on 23.05.2023, notice was issued but on 10.07.2023, the Appellant took time to file rejoinder in the condonation of delay application.
6.It transpired that the Respondent has yet not filed their reply to the application.
7.Counsel for the Respondent, therefore, prays for time to file reply to the condonation application.
8.Let the reply be filed on or before 20.09.2023 with an advance copy to counsel for the Appellant, who may if so advised, file rejoinder to the application on or before 27.09.2023, with an advance copy to counsel for the Respondent.
9.List again on 04.10.2023.”
In the application, the Appellant has made the following averments in Para 3, 4 and 5 which read as under:-
“3.It is submitted that at due to bad health of the partner of the Appellant No. 1 the delay of 14 days was caused in filing the appeal.
4.That a further delay of 14 days was caused in receiving the official translation of some of the annexures that were a part of the accompanying appeal.
5.That the delay in filing the accompanying appeal is bonafide and due to the above-mentioned reasons alone. It was not deliberate and entirely unavoidable.”
The affidavit has been verified by Ambrish L. Shah.
The application for condonation of delay was contested by the Respondent by filing the reply in which it is alleged that the Appellant has concealed the material facts and is thus guilty ofsuppressoveri and suggestiofalsi. It is also averred that the delay has been caused due to bad health of the partner of the Appellant No. 1 but nothing has been attached with the application to prove about the nature of illness as to whether it was such that the appeal could not be filed within the prescribed period of 30 days. It is further submitted that in para 4 of the application, the Appellant has mentioned that the delay has been caused in receiving the official translation of the annexure whereas the Appellant filed an application seeking exemption from filing dim and illegible annexures which is a moonshine defence and nothing more than an afterthought. The Responded has relied upon a decision rendered in the case of V. Nagarajan Vs. SKS Ispat and Power Limited, Civil Appeal No. 3327 of 2020. The Appellant has filed the rejoinder to the reply in which it is alleged that Ambrish L Shah was suffering from bronchitis and hyperglycemia and was under treatment from 23.03.2023 to 07.04.2023 due to which he was totally indisposed and was not in a position to file the appeal. The Appellant has also attached a medical certificate as Annexure A with the rejoinder. On 31.10.2023, this Court passed the following order:-
“This is an application for condonation of delay of 14 days in filing of the Appeal. Reply and Rejoinder to the application has already been filed. In the rejoinder, Counsel for the Appellant has attached a certificate of the Doctor as Annexure A as per which the Doctor has advised the Appellant a 15 days rest w.e.f. 23rd March, 2023. Counsel for the Respondent has raised serious doubt about it. Counsel for the Appellant shall file an affidavit to the effect that during this period he had not undertaken any work and remained bed ridden. Let the affidavit be filed on or before the next date of hearing with advance copy to the Respondents. Adjourned to 07th December, 2023.”
The Appellant has filed the additional affidavit dated 06.12.2023 in which he has reiterated that because of illness mentioned in the rejoinder, he could not file the appeal within the period of 30 days and hence the period of 14 days beyond the period of 30 days had expired for which he has prayedfor condonation of delay.
Counsel for the Respondent has submitted that the certificate of the Doctor attached with the rejoinder is not genuine because the certificate has been issued on 23.03.2023 in which the Doctor has declared that he has examined him today ‘and found to be fit to resume normal duties’. It is submitted that the certificate should have been given by the Doctor only after the Appellant had become fit for resumption of his duty and in the absence of any prescription the medical certificate cannot be relied upon.
We have heard Counsel for the parties and perused the record.
The Appeal before the Appellate Authority is filed under Section 61 of the Code. Section 61(1) provides a right of appeal to an aggrieved person against the order of the Adjudicating Authority. Section 61(2) prescribes a period of 30 days for the purpose of filing of such an appeal. Proviso to Section 61(2) further provides a period of 15 days for filing the appeal which could not have been filed within the prescribed period of 30 days but with an application forcondonation of delay assigning sufficient reason for not filing the appeal in time that too to the satisfaction of the appellate authority. In the present case, the application for condonation of delay is hotly contested. The appeal has been filed beyond the period of 30 days and just one day before the expiry of the period of 15 days prescribed under Section 61(2) proviso. It is needless to mention that no delay can be condoned beyond the period of 15 days as has been held by the Hon’ble Supreme Court in the case of National Spot Exchange Limited Vs. Anil Kohli, Civil Appeal No. 6187 of 2019. The appeal has thus been filed on 44th day and for the purpose of condoning the delay the Appellant has to make out a case that it is not an excuse but an explanation for not filing the appeal within the period of 30 days and that 14 days more were consumed as the non-filing of the appeal was beyond the control of the Appellant.
Initially, the Appellant filed the application by making two averments, firstly, that the delay has been caused due to bad health of the partner of the Appellant No. 1 and secondly, the official translation of the annexure was not received. However, it was not clear in the application that who was the partner whose health was not good because of which the delay has been caused.
Be that as it may, the application for condonation of delay, was contested by the Respondent by filing a reply who has challenged the veracity of the averments made on various grounds, inter alia, alleging that the application has been filed by Ambrish L Shah about whom it is not mentioned that he was ill rather it has been mentioned that health of the partner of the Appellant was bad due to which the delay has been caused. It is also submitted that no proof has been attached much less cogent which could inspire confidence that the delay has been caused because of the bad health of the partner of the Appellant No. 1. The Appellant had thus filed the rejoinder and attached one medical certificate of MBBS Doctor to the effect that the Appellant was suffering from bad health from 23.03.202 to 07.04.2023. The Respondent further contested that it is nowhere averred by the Appellant that because of the ill health he could not do any other work and remained bed ridden. In this regard, the Appellant has filed the additional affidavit.
We have examined the pleadings as well as the affidavit brought on record by the Appellant in the shape of medical certificate for the purpose of condonation of delay but we are unable to place reliance on the medical certificate appended with the rejoinder because the medical certificateappears to be a procured document. For the purpose of a ready reference, the medical certificate is reproduced as under:-
It is the case of the Appellant that he remained bed ridden from 23.03.2023 to 07.04.2023 whereas the certificate given by the doctor is dated 23.03.2023 which does not say that the Appellant was bed ridden till 07.04.2023 rather it says that he has examined the Appellant on 23.03.2023 and found him fit to resume normal duties. The Doctor issued the medical certificate,struck off various portion of the medical certificate and stated that the Appellant was suffering from 23.03.2023 but as a matter of fact this medical certificate should have been issued on the date when the Appellant had become fit to resume normal duties. The Appellant has also failed to bring on record the medical prescription to prove that he was under treatment of the Doctor. Moreover, if the medical certificate dated 23.03.2023 was already available then why it was not attached with the application for condonation of delay and filed only with rejoinder when the objection was taken in the reply.
Thus, in view of the aforesaid discussion, we do not find it to be a fit case for interference for the purpose of condonation of delay of 14 days in filing of the present appeal and the same is thus hereby dismissed.
Since, we have dismissed the application for condonation of delay by an order of even date, therefore, the present appeal is not found to be duly constituted and the same is hereby dismissed.