Yogesh Bosmiya vs Om Prakash Agarwal & Ors.

Per: Justice Rakesh Kumar Jain:

I.A. No. 3933 of 2023. This Application is filed for seeking condonation of delay of 14 days in filing the present Appeal.

The Appeal has been filed under Section 61 of the Insolvency and Bankruptcy Code, 2016 against the Order dated 21^st June, 2023 passed by National Company Law Tribunal, Mumbai Bench, Court III.

The reason given in the Application for not approaching this Court within the prescribed period of 30 days and also spending another 14 days thereafter in approaching this Court are that the Impugned Order was reserved on 20.04.2023 and pronounced on 21.06.2023. The Appellant received the e-copy on 13.07.2023. It is averred that the Appellant was oblivious of the provisions of the Code and the rules and regulations and thus, the Appellant failed to take adequate steps to apply for the certified copy and also did not receive free certified copy from the NCLT. However, an advocate was engaged to file the Appeal but by the time the Appeal was prepared and sent to the Appellant, he was informed by the counsel that filing of certified copy of the Impugned Order is a pre-requisite. The Appellant approached another counsel who informed that Appeal can be filed without even having certified copy and in this process, the limitation of 30 days expired and also a further period of 14 days expired too.

We have heard counsel for the Applicant/Appellant and perused the application.

Since the Appeal has been filed under Section 61 of the Code, it is relevant to refer to Section 61 of the Code which is as follows:

Section 61(1) provides a right of appeal to a person aggrieved by an order of the Adjudicating Authority to the NCLAT. Section 61(2) further provides a period of 30 days for the purpose of filing of Appeal before Appellate Tribunal under Section 61(1) of the Code. In case, the Appeal is not filed within the prescribed period of 30 days, proviso to Section 61(2) provides for a period of 15 days within which Appeal can be filed, satisfying the Appellate Authority that there was sufficient cause for not filing the Appeal in time. However, the period of 15 days cannot be extended and the Appellate Tribunal does not have the jurisdiction to consider and condone the delay beyond the period of 15 days.

No doubt that the Appellant has a right to file an Appeal for which a period of 30 days has been prescribed but it is also true that beyond the period of 15 days, the limitation cannot be extended even by this Court as it does not have the jurisdiction. In this respect, regard may be had to the decision of the Hon’ble Supreme Court in National Spot Exchange Limited Vs. Mr. Anil Kohli, RP for Dunar Foods Limited, Civil Appeal No. 6187 of 2019 in which it has been held that after the expiry of 15 days, the limitation cannot even be condoned even under Article 142 of the Constitution of India.

Be that as it may, the Appellant is required to show a sufficient cause for not approaching the Court within time while seeking condonation of delay within the window of 15 days, which means that sufficient cause is a pre-requisite to entertain the application and it is also true that the sufficient cause has to be to the satisfaction of Appellate Tribunal. The reason given by the Appellant/Applicant is totally flimsy because the Appellant has not given any detail as to when the Appeal was prepared and why the certified copy was not even applied for. We are totally unsatisfied with the reasons given in the Application for condonation of delay, therefore, the Application is hereby dismissed.