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Judgment
ORDER
12.09.2022: Heard Dr. S. Vidya, the Learned Counsel appearing for the Appellant. Mr. Ashok Seshadri, the Liquidator appears in person.
According to the Appellant / The Regional provident Fund Commissioner and Recovery Officer, EPFO Regional Office, Chennai, the instant ‘Comp App (AT)(CH)(Ins) No.334/2022’ is preferred against the ‘Impugned Order’ dated 09.06.2022 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai) in dismissing the IA(IBC)/748/CHE/2021 in CP/1210/IB/2018, without costs.
The Learned Counsel for the Appellant submits that the ‘Liquidator’ had failed to invite the ‘Public Announcement’ of the ‘Liquidation Order’, which had eventually led to the delay in preferring the ‘Claim’, before the ‘Liquidator’. However, it is the stand of the ‘Appellant’ / ‘Applicant’ that the Respondent / Liquidator has not adhered to the due process of ‘Law’.
Advancing her argument, the Learned Counsel for the Appellant contends that the Respondent / Liquidator had failed to appreciate the ‘Statutory Dues’ payable by the Corporate Debtor, as per EPF & MP Act, 1952, as reflected in the ‘Books of Accounts’ of the ‘Corporate Debtor’.
The Learned Counsel for the ‘Appellant’ takes a plea that the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai) had failed to consider that the ‘Appellant’ had preferred a ‘Claim’ in ‘Form F’, as there were ‘more properties’ to be taken into account.
The Learned Counsel for the Appellant points out that the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai), at the time of passing the ‘impugned order’ dated 09.06.2022 in IA(IBC)/748/CHE/2021 in CP/1210/IB/2018 had failed to take into account since the Respondent required a ‘formal order’ from the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai), and the ‘Application’ for inclusion in the ‘Finalised List’ of ‘Stakeholders’ was filed and because of the insistence made, in this regard, there had occasioned a delay and also that the fact of ‘Covid-19 Pandemic’, the ‘Application’ to ‘Condone the Delay’ was filed and non-consideration of these aspects had resulted in dismissal of the IA(IBC)/748/CHE/2021 in CP/1210/IB/2018, which has caused prejudice and hardship to the Appellant.
The Learned Counsel for the Appellant comes out with a ‘stand’ that the ‘Delay’ is neither ‘wilful nor wanton’, but, combination of factors ‘contributory not attributable’ to the Appellant, had not been taken into account by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai), at the time of passing the ‘impugned order’ on 09.06.2022 in IA(IBC)/748/CHE/2021 in CP/1210/IB/2018.
At this juncture, this ‘Tribunal’ has perused the ‘impugned order’ passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai) in IA(IBC)/748/CHE/2021 in CP/1210/IB/2018 and in regard to that, at Paragraph Nos.12 to 14 had observed the following: -
12.“Further, the Hon’ble Supreme Court in Gaurav Hargovindbhai Dave – Vs- Asset Reconstruction Company (I) Ltd. & Another in Civil Appeal No.4952 of 2019, in relation to the aspect of limitation has restated the well-established and well settled principle that “there is no equity about limitation”, we are unable to entertain this Application / Appeal.
13.Hence extraordinary delay of 672 days in submission of claim by applicant, is devoid of merits. Further in interest of justice also we cannot condone the delay sought for. Further, if such extraordinary delay is condone, it shall defeat the very purpose of the IBC enactment, which is a time bound process.
14.In view of the above facts and circumstances, since the application is incomplete, the claim form which has been filed by the applicant before the Liquidator is not in accordance with the form prescribed under IBBI (Liquidation Process) Regulations, 2016, such claim is non-est.”
and ultimately dismissed the IA(IBC)/748/CHE/2021 in CP/1210/IB/2018 on 09th June 2022.
Although, the Learned Counsel for the Appellant seeks umbrage under the Hon’ble Supreme Court’s Order in Suo Motu Writ Petition (Civil) No.3 of 2020 dated 08.03.2021 and in Miscellaneous Application No.21 of 2022 in Miscellaneous Application No.665 of 2021 in Suo Motu Writ Petition (Civil) No.3 of 2020 dated 10.01.2022 to fortify her contention that there is no delay in the matter ‘in issue’, yet, this ‘Tribunal’ is of the considered view that the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai) had rightly observed that it had calculated the delay from the ‘Liquidation Commencement Date’ (03.09.2019) and till the ‘Date of Submission of ‘impugned Form’ before the ‘Liquidator’ on 06.07.2021 and came to the calculation that there was a delay of of 672 days and not 268 days.
More importantly, in IA(IBC)/748/CHE/2021 in CP/1210/IB/2018 (Dated 20.07.2021) the Appellant / the Regional Provident Fund Commissioner & Recovery Officer, EPFO Regional Office, Chennai in the ‘Relief Portion’ at vi (a) had averred as under: -
“(a)This Honourable Tribunal may be pleased to condone the delay if any, in filing of claim amount of the Applicant for Rs.3,72,119/- before the Respondent”.
Ordinarily, it is for the Applicant / Appellant, when there has occasioned a delay in preferring a ‘Condone Delay Application’ in a given ‘Proceeding’ or an ‘Appeal’, to specify / mention the ‘exact number of days’ of ‘Appeal’ that had occasioned by computing / calculating the same. However, in the ‘relevant portion’ of IA(IBC)/748/CHE/2021 in CP/1210/IB/2018, the ‘Applicant / Appellant’ has not calculated the period of delay and simpliciter mentioned …. ‘to condone the delay, if any’. In reality, the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai) in the ‘Impugned Order’ dated 09.06.2022 in IA(IBC)/748/CHE/2021 in CP/1210/IB/2018 had calculated the delay as 672 days and not 268 days, of course, in a crystalline fashion.
It cannot be gainsaid that the ingredients of Section ‘5’ of the Limitation Act, 1963, is a ‘Hard Taskmaster’ and the ‘delay’ that has occurred in the instant case is an ‘exorbitant one’, which cannot be ‘condoned’ by this ‘Tribunal’, as the IA(IBC)/748/CHE/2021 in CP/1210/IB/2018 lacks ‘Bona-fide’.
Be that it as may, in the light of the foregoings and this ‘Tribunal’ also on going through the ‘impugned order’ in IA(IBC)/748/CHE/2021 in CP/1210/IB/2018 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai) on 09.06.2022 is not inclined to take a ‘different view’ than the view arrived at by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench – I, Chennai) in dismissing the IA(IBC)/748/CHE/2021 in CP/1210/IB/2018 without costs.
Consequently, the ‘Comp App (AT)(CH)(Ins) No.334/2022’ filed by the Appellant / Applicant ‘sans merits’.
In fine, the instant ‘Comp App (AT)(CH)(Ins) No.334/2022’ is dismissed without Costs.