National Company Law Appellate Tribunal
A.Sai Siva Jyothi vs Ms. Sripriya Kumar on 27 July, 2023
1
NATIONAL COMPANY LAW APPELLATE TRIBUNAL AT CHENNAI
(APPELLATE JURISDICTION)
Company Appeal (AT) (CH) (Ins) No. 208/2023
(IA Nos. 689, 690, 691 & 688/2023)
(Filed under Section 61 of the Insolvency and Bankruptcy Code, 2016)
Arising out of the Impugned Order dated 22.03.2023 in
IA/(IBC)/61/CHE/2023 in CP(IB)/1352/IB/2018, passed by the
'Adjudicating Authority', (National Company Law Tribunal, Division
Bench I, Chennai)
In the matter of:
A. Sai Siva Jyothi ...Appellant
V
Ms. Sripriya Kumar,
Resolution Professional of
M/s. Prasad Properties & Investments Pvt. Ltd. ...Respondent
Present :
For Appellant : Ms. Shubharanjani Ananth, Advocate
For Respondent : Mr. N. P. VIjay Kumar Mr. R Pradeep, Advocates
ORDER
Per: Justice Rakesh Kumar Jain:
I.A. No. 688 of 2023
This appeal is directed against the order dated 22.03.2023, passed by the Adjudicating Authority (National Company Law Tribunal, Chennai Bench-I) by which an application i.e. I.A./IBC/61/CHE/2023 filed in CP(IB)/1352/IB/2018 by the Resolution Professional under Section 33(2) and 60(5) of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') has been allowed.
Company Appeal (AT) (CH) (Ins) No. 208/2023 2
2. This Appeal is filed alongwith an application i.e. I.A. No. 688 of 2023 for condonation of delay of 15 days in filing of the appeal. Since, we cannot hear the appeal until and unless the delay is condoned, therefore, we are taking up the application for condonation of delay for the present and disposing of the same.
3. Counsel for the Appellant has submitted that the order was passed on 22.03.2023. The Appellant is not a party to the litigation. The Appellant came to know about the impugned order dated 22.03.2023 when he met one of the suspended directors of the Corporate Debtor at a social function on 26.03.2023 and after obtaining relevant documents, the present appeal has been preferred but in this process not only the period of 30 days which is provided in the statute had expired but also the appeal has been filed on the 15 th (last date) of the extended period of limitation.
4. We have heard Counsel for the Appellant and perused the record. Section 61 of the Code deals with the appeals and the appellate authority. Section 61 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 Company Appeal (AT) (CH) (Ins) No. 208/2023 3 days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days."
5. Section 61(1) provides a statutory right to any person who is aggrieved by an order of the Adjudicating Authority to prefer an appeal to the appellate authority. Section 61(2) prescribes a period of 30 days within which the appeal under Section 61(1) is to be filed before the Appellate Authority, however, Section 61(2) proviso further provides a period of 15 days for the purpose of extension of time in case the Applicant is able to satisfy the Appellate Authority that there was a sufficient cause for not approaching the Appellate Authority in time with the appeal but in no case the period of 15 days can further be extended.
In this regard, the Hon'ble Supreme Court, in the case of National Spot Exchange Limited Vs. Mr. Anil Kohli, RP for Dunar Foods Limited, Civil Appeal No. 6187 of 2019 decided on 14.09.2021 has held that:-
"11.2 In the case of Teri Oat Estates (P) Ltd. v. U.T. Chandigarh, reported in (2004) 2 SCC 130, in paragraphs 36 & 37, it is observed as under:
"36. We have no doubt in our mind that sympathy or sentiment by itself cannot be a ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be contravention of a statutory provision.
37. As early as in 1911, Farwell, L.J. In Latham v. Richard Johnson & Nephew Ltd. (1911-12) All ER Rep 117 observed: (All ER p. 123E) Company Appeal (AT) (CH) (Ins) No. 208/2023 4 "We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o' the wisp to take as a guide in the search for legal principles"
Thus, considering the statutory provisions which provide that delay beyond 15 days in preferring the appeal is uncondonable, the same cannot be condoned even in exercise of powers under Article 142 of the Constitution.
12. In view of the afore-stated settled proposition of law and even considering the fact that even the certified copy of the order passed by the adjudicating authority was applied beyond the period of 30 days and as observed hereinabove there was a delay of 44 days in preferring the appeal which was beyond the period of 15 days which maximum could have been condoned and in view of specific statutory provision contained in Section 61(2) of the IB Code, it cannot be said that the NCLAT has committed any error in dismissing the appeal on the ground of limitation by observing that it has no jurisdiction and/or power to condone the delay exceeding 15 days."
6. Counsel for the Appellant has submitted that the impugned order dated 22.03.2023 was not within her knowledge because she was not a party to the case which has been decided by the impugned order but she got the information on 26.03.2023 from one of the suspended directors of the Corporate Debtor who met her at a social function. It is therefore submitted that the limitation may be counted from the date of knowledge i.e. 26.03.2023 and counting limitation from the said date and the appeal having been filed on 06.05.2023, is within the extended period i.e. 15th day. It has also come on record that this appeal has been filed alongwith an application for seeking exemption from filing certified copy of the impugned order.
Company Appeal (AT) (CH) (Ins) No. 208/2023 5
7. The question in this case is that if the Appellant got the information on 26.03.2023 then she had the opportunity to file the appeal within the statutory period of 30 days up to 26.04.2023 but no appeal was filed nor even certified copy was applied.
8. Be that as it may, the Appellant then took further period of 15 days i.e. the appeal has been filed on the last day of the extended period of 15 days without giving any cogent reason for not preferring the appeal within the statutory period or even before that. The only reason given is that after she came to know the impugned order dated 22.03.2023 on 26.03.2023, she collected relevant documents and filed the appeal. The reason assigned in this application is not at all sufficient for the purpose of condonation of delay and it appears to us that the Appellant is not taking the period, within which the appeal is to be filed, seriously rather it appears that there is a perception that the condonation of delay is a matter of right.
9. After giving our thoughtful consideration to the aforesaid facts and circumstances, we are of the considered opinion that there is hardly any ground mentioned by the Appellant in the application and argued during the course of hearing for the purpose of causing the delay in filing of the appeal which may be a sufficient cause, therefore, we are of the view that there is no merit in the present application and hence, the same is hereby dismissed. No costs. CA (AT) (Ins) No. 208 of 2023
Company Appeal (AT) (CH) (Ins) No. 208/2023 6 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 thus hereby dismissed. No costs.
[Justice Rakesh Kumar Jain] Member (Judicial) [Shreesha Merla] Member (Technical) New Delhi 27th July, 2023 Sheetal Company Appeal (AT) (CH) (Ins) No. 208/2023