National Company Law Appellate Tribunal
Anneel Saraogi vs Board Of Trustees For The Port Of Kolkata ... on 14 December, 2023
1
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL
BENCH, NEW DELHI
Comp. App. (AT) (Ins) No. 1380 of 2023 & I.A. No. 4923, 4905 of 2023
IN THE MATTER OF:
Anneel Saraogi ...Appellant
Versus
Board of Trustees for the Port of Kolkata ...Respondent
Present
For Appellant : Mr. Shreeyash U. Lalit, Mr. Runjhun Garg, Abhihav
Aggarwal, Krishna Gopal Abhay, Himanshu Vats,
Advocates
For Respondents : Mr. Siddhant Jaiswal, Adv.
With
Comp. App. (AT) (Ins) No. 1381 of 2023 & I.A. No. 4924, 4904 of
2023
IN THE MATTER OF:
Anneel Saraogi ...Appellant
Versus
Board of Trustees for the Port of Kolkata ...Respondent
Present
For Appellant : Mr. Shreeyash U. Lalit, Mr. Runjhun Garg, Abhihav
Aggarwal, Krishna Gopal Abhay, Himanshu Vats,
Advocates
For Respondents : Mr. Siddhant Jaiswal, Adv.
With
Comp. App. (AT) (Ins) No. 1382 of 2023 & I.A. No. 4925, 4906 of
2023
IN THE MATTER OF:
Anneel Saraogi ...Appellant
Versus
The Assistant Commissioner of Custom & Anr. ...Respondents
Present
For Appellant : Mr. Shreeyash U. Lalit, Mr. Runjhun Garg, Abhihav
Aggarwal, Krishna Gopal Abhay, Himanshu Vats,
Advocates
For Respondents : Mr. Siddhant Jaiswal, Adv.
2
ORDER
Per: Justice Rakesh Kumar Jain:
I.A. No. 4923 of 2023 & I.A. No. 4905 of 2023 filed in Comp. App. (AT) (Ins) No. 1380 of 2023 This order shall dispose of two applications i.e. I.A. No. 4923 of 2023 & I.A. No. 4905 of 2023 filed in Comp. App. (AT) (Ins) No. 1380 of 2023 which have been filed for condonation of delay of 15 days in filing the appeal and for condonation of delay of 162 in refiling the appeal.
2. The Appellant/Applicant has averred in Para 3 of the application, while seeking condonation of delay of 15 days in filing of the appeal, that time has been spent in procuring the relevant documents and as such the Counsel for the Applicant could not receive the instructions on time. Apparently, it was not a reason much less sufficient for condonation of delay, therefore, the Appellant took liberty to file an additional affidavit in support of the application which was granted vide order dated 07.11.2023, pursuant to which, the additional affidavit was filed to explain the delay. In the additional affidavit, the Appellant made the following averment in para 8, 9 and 10 which are reproduced as under:-
"8. Additionally, in the meantime, the counsel of the Appellant wanted to file several documents on record for better adjudication of the matter. The counsel requested the Appellant for copies of several documents including Handling agreement dated 15.12.2018, Bill of Lading, Authorization letter contained in the Tripartite Agreement, Resolution plan, CoC resolution accepting resolution plan etc. The said documents were necessary to showcase that the goods belong to the Corporate Debtor, which is the main issue involved in the instant matter.
9. However, the Appellant, being the Chairman of the Monitoring Committee, faced immense difficulty in procuring the documents 3 as the same were not in custody of the Appellant. The Appellant put constant efforts to procure the said documents for the Counsel in order to re-file the matter within time, however, some of the documents could not be procured, which also occasioned the delay in refiling.
10. As of today also, the Appellant has not been able to procure several documents including Bill of Lading, Authorization letter contained in the Tripartite Agreement and several other documents mentioned in the Tripartite Agreement. The documents which were successfully procured by the Appellant have been filed in an application for Additional Documents."
3. On the other hand, Counsel for the Respondent has submitted that the appeal was filed on 17.04.2023 and thereafter another application was filed by the Appellant for additional affidavit on 08.11.2023. It is submitted that all the documents were not filed with the appeal even though when it was filed on 15th day as provided under Section 61(2) proviso. It is argued by the Respondent that there is no sufficient reason assigned by the Appellant for not filing the appeal within 30 days as prescribed under Section 61(2) and also for filing the appeal on the last day of limitation prescribed under Section 61(2) proviso.
4. We have heard Counsel for the parties and perused the record.
5. In order to appreciate the rival contentions, it would be relevant to refer to Section 61 of the Code which deals with the appeals and appellate authority which is reproduced as under:-
"Section 61. Appeals and Appellate Authority (1) Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal:
Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of 4 thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days."
6. The aforesaid provision has four parts. First, the appeal can be filed by any person who is aggrieved by the order of the Adjudicating Authority. Second, the period for filing the appeal is 30 days. Third, the period of 15 days can further be extended after the expiry of 30 days as prescribed. Fourth, no further period can be extended after the expiry of 15 days.
7. In the present case, the appeal has been filed on the last date i.e. 15th day i.e. 45th day. The reason given in para 3 of the application for condonation of delay appears to be a halfhearted attempt on the part of the Appellant for condonation the delay of 15 days because it is mentioned therein that the appellant took time for procuring relevant documents and as such the counsel for the Appellant could not receive instructions on time. However, in the additional affidavit, the Appellant has mentioned that it had to obtain several documents which could not be procured in time. However, it is not denied that the appeal was filed on 17.04.2023 and then an application was filed on 08.11.2023 for placing on record the additional documents. Thus, the question would arise if the documents can be filed as additional evidence through an application, then why the appeal could not be filed within the prescribed time. It has been held by the Hon'ble Supreme Court that the sufficient cause should be an explanation and not an excuse whereas in the present case, the explanation given in the additional affidavit is only an excuse otherwise period of 30 days is provided to all for challenging the order of the Adjudicating Authority and only a window of 15 days is kept open for filing the appeal alongwith an application for condonation of delay 5 but the explanation has to be a sufficient cause that too to the satisfaction of the Appellate Authority, which in our considered opinion is miserably missing in the present case and therefore, we could not persuade ourselves to condone the delay of 15 days for filing the appeal. Even otherwise, the Hon'ble Supreme Court in the case of National Spot Exchange Limited Vs. Anil Kohli, Civil Appeal No. 6187 of 2019 held that the delay beyond the period of 15 days cannot be condoned by the Tribunal and even under Article 142 of the Constitution of India which makes the provision very stringent and lays responsibility on the Appellant to be vigilant enough to file the appeal within the prescribed period. In view of the aforesaid facts and circumstances, we do not find any merit in the application and the same is hereby dismissed.
8. Since, we have dismissed the application for condonation of delay, therefore, the present appeal is not maintainable, therefore, the application for seeking condonation of delay in re-filing has become infructuous and the same is hereby dismissed as such. Otherwise, it was also highly belated.
Comp. App. (AT) (Ins) No. 1380 of 2023
9. Since, the application for condonation of delay has been dismissed by an order of even date, therefore, the appeal is not found to be duly constituted and the same is hereby dismissed.
I.A. No. 4924 of 2023 & I.A. No. 4904 of 2023 In Comp. App. (AT) (Ins) No. 1381 of 2023 This order shall dispose of two applications i.e. I.A. No. 4924 of 2023 & I.A. No. 4904 of 2023 filed in Comp. App. (AT) (Ins) No. 1380 of 2023 which 6 have been filed for condonation of delay of 15 days in filing the appeal and for condonation of delay of 162 in refiling the appeal.
2. The Appellant/Applicant has averred in Para 3 of the application, while seeking condonation of delay of 15 days in filing of the appeal, that time has been spent in procuring the relevant documents and as such the Counsel for the Applicant could not receive the instructions on time. Apparently, it was not a reason much less sufficient for condonation of delay, therefore, the Appellant took liberty to file an additional affidavit in support of the application which was granted vide order dated 07.11.2023, pursuant to which, the additional affidavit was filed to explain the delay. In the additional affidavit, the Appellant made the following averment in para 8, 9 and 10 which are reproduced as under:-
"8. Additionally, in the meantime, the counsel of the Appellant wanted to file several documents on record for better adjudication of the matter. The counsel requested the Appellant for copies of several documents including Handling agreement dated 15.12.2018, Bill of Lading, Authorization letter contained in the Tripartite Agreement, Resolution plan, CoC resolution accepting resolution plan etc. The said documents were necessary to showcase that the goods belong to the Corporate Debtor, which is the main issue involved in the instant matter.
9. However, the Appellant, being the Chairman of the Monitoring Committee, faced immense difficulty in procuring the documents as the same were not in custody of the Appellant. The Appellant put constant efforts to procure the said documents for the Counsel in order to re-file the matter within time, however, some of the documents could not be procured, which also occasioned the delay in refiling.
10. As of today also, the Appellant has not been able to procure several documents including Bill of Lading, Authorization letter contained in the Tripartite Agreement and several other documents mentioned in the Tripartite Agreement. The documents which were successfully procured by the Appellant have been filed in an application for Additional Documents."7
3. On the other hand, Counsel for the Respondent has submitted that the appeal was filed on 17.04.2023 and thereafter another application was filed by the Appellant for additional affidavit on 08.11.2023. It is submitted that all the documents were not filed with the appeal even though when it was filed on 15th day as provided under Section 61(2) proviso. It is argued by the Respondent that there is no sufficient reason assigned by the Appellant for not filing the appeal within 30 days as prescribed under Section 61(2) and also for filing the appeal on the last day of limitation prescribed under Section 61(2) proviso.
4. We have heard Counsel for the parties and perused the record.
5. In order to appreciate the rival contentions, it would be relevant to refer to Section 61 of the Code which deals with the appeals and appellate authority which is reproduced as under:-
"Section 61. Appeals and Appellate Authority (1) Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal:
Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days."
6. The aforesaid provision has four parts. First, the appeal can be filed by any person who is aggrieved by the order of the Adjudicating Authority. Second, the period for filing the appeal is 30 days. Third, the period of 15 days can further be extended after the expiry of 30 days as prescribed. Fourth, no further period can be extended after the expiry of 15 days. 8
7. In the present case, the appeal has been filed on the last date i.e. 15th day i.e. 45th day. The reason given in para 3 of the application for condonation of delay appears to be a halfhearted attempt on the part of the Appellant for condonation the delay of 15 days because it is mentioned therein that the appellant took time for procuring relevant documents and as such the counsel for the Appellant could not receive instructions on time. However, in the additional affidavit, the Appellant has mentioned that it had to obtain several documents which could not be procured in time. However, it is not denied that the appeal was filed on 17.04.2023 and then an application was filed on 08.11.2023 for placing on record the additional documents. Thus, the question would arise if the documents can be filed as additional evidence through an application, then why the appeal could not be filed within the prescribed time. It has been held by the Hon'ble Supreme Court that the sufficient cause should be an explanation and not an excuse whereas in the present case, the explanation given in the additional affidavit is only an excuse otherwise period of 30 days is provided to all for challenging the order of the Adjudicating Authority and only a window of 15 days is kept open for filing the appeal alongwith an application for condonation of delay but the explanation has to be a sufficient cause that too to the satisfaction of the Appellate Authority, which in our considered opinion is miserably missing in the present case and therefore, we could not persuade ourselves to condone the delay of 15 days for filing the appeal. Even otherwise, the Hon'ble Supreme Court in the case of National Spot Exchange Limited Vs. Anil Kohli, Civil Appeal No. 6187 of 2019 held that the delay beyond the period of 15 days cannot be condoned by the Tribunal and even under Article 9 142 of the Constitution of India which makes the provision very stringent and lays responsibility on the Appellant to be vigilant enough to file the appeal within the prescribed period. In view of the aforesaid facts and circumstances, we do not find any merit in the application and the same is hereby dismissed.
8. Since, we have dismissed the application for condonation of delay, therefore, the present appeal is not maintainable, therefore, the application for seeking condonation of delay in re-filing has become infructuous and the same is hereby dismissed as such. Otherwise, it was also highly belated.
Comp. App. (AT) (Ins) No. 1381 of 2023
9. Since, the application for condonation of delay has been dismissed by an order of even date, therefore, the appeal is not found to be duly constituted and the same is hereby dismissed.
I.A. No. 4925 of 2023 & I.A. No. 4906 of 2023 In Comp. App. (AT) (Ins) No. 1382 of 2023 This order shall dispose of two applications i.e. I.A. No. 4925 of 2023 & I.A. No. 4906 of 2023 filed in Comp. App. (AT) (Ins) No. 1380 of 2023 which have been filed for condonation of delay of 15 days in filing the appeal and for condonation of delay of 162 in refiling the appeal.
2. The Appellant/Applicant has averred in Para 3 of the application, while seeking condonation of delay of 15 days in filing of the appeal, that time has been spent in procuring the relevant documents and as such the Counsel for the Applicant could not receive the instructions on time. Apparently, it was not a reason much less sufficient for condonation of delay, therefore, the 10 Appellant took liberty to file an additional affidavit in support of the application which was granted vide order dated 07.11.2023, pursuant to which, the additional affidavit was filed to explain the delay. In the additional affidavit, the Appellant made the following averment in para 8, 9 and 10 which are reproduced as under:-
"8. Additionally, in the meantime, the counsel of the Appellant wanted to file several documents on record for better adjudication of the matter. The counsel requested the Appellant for copies of several documents including Handling agreement dated 15.12.2018, Bill of Lading, Authorization letter contained in the Tripartite Agreement, Resolution plan, CoC resolution accepting resolution plan etc. The said documents were necessary to showcase that the goods belong to the Corporate Debtor, which is the main issue involved in the instant matter.
9. However, the Appellant, being the Chairman of the Monitoring Committee, faced immense difficulty in procuring the documents as the same were not in custody of the Appellant. The Appellant put constant efforts to procure the said documents for the Counsel in order to re-file the matter within time, however, some of the documents could not be procured, which also occasioned the delay in refiling.
10. As of today also, the Appellant has not been able to procure several documents including Bill of Lading, Authorization letter contained in the Tripartite Agreement and several other documents mentioned in the Tripartite Agreement. The documents which were successfully procured by the Appellant have been filed in an application for Additional Documents."
3. On the other hand, Counsel for the Respondent has submitted that the appeal was filed on 17.04.2023 and thereafter another application was filed by the Appellant for additional affidavit on 08.11.2023. It is submitted that all the documents were not filed with the appeal even though when it was filed on 15th day as provided under Section 61(2) proviso. It is argued by the Respondent that there is no sufficient reason assigned by the Appellant for not filing the appeal within 30 days as prescribed under Section 61(2) and 11 also for filing the appeal on the last day of limitation prescribed under Section 61(2) proviso.
4. We have heard Counsel for the parties and perused the record.
5. In order to appreciate the rival contentions, it would be relevant to refer to Section 61 of the Code which deals with the appeals and appellate authority which is reproduced as under:-
"Section 61. Appeals and Appellate Authority (1) Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal:
Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days."
6. The aforesaid provision has four parts. First, the appeal can be filed by any person who is aggrieved by the order of the Adjudicating Authority. Second, the period for filing the appeal is 30 days. Third, the period of 15 days can further be extended after the expiry of 30 days as prescribed. Fourth, no further period can be extended after the expiry of 15 days.
7. In the present case, the appeal has been filed on the last date i.e. 15th day i.e. 45th day. The reason given in para 3 of the application for condonation of delay appears to be a halfhearted attempt on the part of the Appellant for condonation the delay of 15 days because it is mentioned therein that the appellant took time for procuring relevant documents and as such the counsel for the Appellant could not receive instructions on time. However, in the additional affidavit, the Appellant has mentioned that it had to obtain several documents which could not be procured in time. However, 12 it is not denied that the appeal was filed on 17.04.2023 and then an application was filed on 08.11.2023 for placing on record the additional documents. Thus, the question would arise if the documents can be filed as additional evidence through an application, then why the appeal could not be filed within the prescribed time. It has been held by the Hon'ble Supreme Court that the sufficient cause should be an explanation and not an excuse whereas in the present case, the explanation given in the additional affidavit is only an excuse otherwise period of 30 days is provided to all for challenging the order of the Adjudicating Authority and only a window of 15 days is kept open for filing the appeal alongwith an application for condonation of delay but the explanation has to be a sufficient cause that too to the satisfaction of the Appellate Authority, which in our considered opinion is miserably missing in the present case and therefore, we could not persuade ourselves to condone the delay of 15 days for filing the appeal. Even otherwise, the Hon'ble Supreme Court in the case of National Spot Exchange Limited Vs. Anil Kohli, Civil Appeal No. 6187 of 2019 held that the delay beyond the period of 15 days cannot be condoned by the Tribunal and even under Article 142 of the Constitution of India which makes the provision very stringent and lays responsibility on the Appellant to be vigilant enough to file the appeal within the prescribed period. In view of the aforesaid facts and circumstances, we do not find any merit in the application and the same is hereby dismissed.
8. Since, we have dismissed the application for condonation of delay, therefore, the present appeal is not maintainable, therefore, the application 13 for seeking condonation of delay in re-filing has become infructuous and the same is hereby dismissed as such. Otherwise, it was also highly belated.
Comp. App. (AT) (Ins) No. 1382 of 2023
9. Since, the application for condonation of delay has been dismissed by an order of even date, therefore, the appeal is not found to be duly constituted and the same is hereby dismissed.
[Justice Rakesh Kumar Jain] Member (Judicial) [Naresh Salecha] Member (Technical) New Delhi 14th December, 2023.
Sheetal