National Company Law Appellate Tribunal
M/S Sai Trading And Interiors vs Mr. Sundaresan Nagarajan on 6 December, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
CHENNAI BENCH
TA (AT) No. 30 of 2021
Company Appeal (AT) (Ins.) No. 442 of 2020
[Arising out of Order dated 13.12.2019 passed by the Tribunal/National
Company Law Tribunal, Division Bench-I, Chennai Bench in
MA/554/2019 and MA/877/2019 in CP/193/IB/2018]
IN THE MATTER OF:
1. Vipras ADZ
Through its Partner
Mrs. C.S. Gajalakshmi
F1, Pace Park, No. 10/27, 6th Cross
Street,
Shenoy Nagar, Chennai-30 ...Appellant
Versus
1. Mr. Sundaresan Nagarajan,
IBBI/IPA-001/IP-P00418/2017-
2018/10741
Resolution Professional,
M/s. P DOT G CONSTRUCTIONS PRIVATE
LTD.,
(CIN): U45200TN2007PTC063625
"8 Square", Plot No. 26, Balasubramanian
Street,
Sapthagiri Nagar, Valsaravakkam,
Chennai-600116.
Email:
rpforpdotg.chennai@3dresolutionservices.
com ...Respondent No.1
2. RCC e-Construct Private Limited,
Resolution Applicant,
C-74, Sushant Lok, Phase 1, Gurgaon,
Haryana 122002.
Email: [email protected] ...Respondent No.2
Present:
For Appellant : Mr. E. Om Prakash, Senior Advocate
For Ms. Madhusmita Bora, Advocate.
For Respondents : Mr. Ravi Rajagopalan, Advocate for
R-1/Erstwhile RP.
Mr. P.H. Arvindh Pandian, Senior Advocate
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
1 of 25
For R2/ Successful Resolution Applicant
For Ms. Anannya Gosh,
Ms. Mrinalini Misra,
and Ms. Ragha Sudha, Advocates
For R2/ Successful Resolution Applicant.
With
TA No. 31 of 2021
Company Appeal (AT) (Ins.) No. 443 of 2020
[Arising out of Order dated 13.12.2019 passed by the Tribunal/National
Company Law Tribunal, Division Bench-I, Chennai Bench in
MA/554/2019 and MA/630/2019 in CP/193/IB/2018]
IN THE MATTER OF:
B. Akhilandeswari
No A3, Parkview Apartments,
No 2, 4th Cross Street, Maxworthnagar,
Phase-2
Kolapakkam, Chennai- 600122 ...Appellant
Versus
1. Mr. Sundaresan Nagarajan,
IBBI/IPA-001/IP-P00418/2017-
2018/10741
Resolution Professional,
M/s. P DOT G CONSTRUCTIONS PRIVATE
LTD.,
(CIN): U45200TN2007PTC063625
"8 Square", Plot No. 26, Balasubramanian
Street,
Sapthagiri Nagar, Valsaravakkam,
Chennai-600116.
Email:
rpforpdotg.chennai@3dresolutionservices.
com ...Respondent No.1
2. RCC e-Construct Private Limited,
Resolution Applicant,
C-74, Sushant Lok, Phase 1, Gurgaon,
Haryana 122002.
Email: [email protected] ...Respondent No.2
Present:
For Appellant : Mr. E. Om Prakash, Senior Advocate
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
2 of 25
For Ms. Madhusmita Bora, Advocate.
For Respondents : Mr. Ravi Rajagopalan, Advocate for
R-1/Erstwhile RP.
Mr. P.H. Arvindh Pandian, Senior Advocate
For R2/ Successful Resolution Applicant
For Ms. Anannya Gosh,
Ms. Mrinalini Misra,
And Ms. Ragha Sudha, Advocates
For R2/ Successful Resolution Applicant.
7
With
TA No. 32 of 2021
Company Appeal (AT) (Ins.) No. 444 of 2020
[Arising out of Order dated 13.12.2019 passed by the Tribunal/National
Company Law Tribunal, Division Bench-I, Chennai Bench in
MA/554/2019 and MA/879/2019 in CP/193/IB/2018]
IN THE MATTER OF:
S. Rani
Proprietor of Sri Chakra ADZ
No. 8, Nageswari Amman Koil Street,
Gandhi Nagar, Avadi,
Chennai - 600054. ...Appellant
Versus
1. Mr. Sundaresan Nagarajan,
IBBI/IPA-001/IP-P00418/2017-
2018/10741
Resolution Professional,
M/s. P DOT G CONSTRUCTIONS PRIVATE
LTD.,
(CIN): U45200TN2007PTC063625
"8 Square", Plot No. 26, Balasubramanian
Street,
Sapthagiri Nagar, Valsaravakkam,
Chennai-600116.
Email:
rpforpdotg.chennai@3dresolutionservices.
com ...Respondent No.1
2. RCC e-Construct Private Limited,
Resolution Applicant,
C-74, Sushant Lok, Phase 1, Gurgaon,
Haryana 122002.
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
3 of 25
Email: [email protected]
...Respondent No.2
Present:
For Appellant : Mr. E. Om Prakash, Senior Advocate
For Ms. Madhusmita Bora, Advocate.
For Respondents : Mr. Ravi Rajagopalan, Advocate for
R-1/Erstwhile RP.
Mr. P.H. Arvindh Pandian, Senior Advocate
For R2/ Successful Resolution Applicant
For Ms. Anannya Gosh,
Ms. Mrinalini Misra,
And Ms. Ragha Sudha, Advocates
For R2/ Successful Resolution Applicant.
With
TA No. 33 of 2021
Company Appeal (AT) (Ins.) No. 445 of 2020
[Arising out of Order dated 13.12.2019 passed by the Tribunal/National
Company Law Tribunal, Division Bench-I, Chennai Bench in
MA/554/2019 and MA/874/2019 in CP/193/IB/2018]
IN THE MATTER OF:
1. Mr. R. Krishnamoorthy
S/o. Raji,
No. 1/47, Pudhiya Salai, Nadukuthagai,
Thiruninravur, Chennai - 602024,
Email: [email protected] ...Appellant No. 1
2. Mrs. S. Priya
W/o. Natarajan,
No. 15/1, Venkatachala Naicken Street,
Pudhupet, Anna Salai, Chennai - 600002.
Email: [email protected] ...Appellant No. 2
Versus
1. Mr. Sundaresan Nagarajan,
IBBI/IPA-001/IP-P00418/2017-
2018/10741
Resolution Professional,
M/s. P DOT G CONSTRUCTIONS PRIVATE
LTD.,
(CIN): U45200TN2007PTC063625
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
4 of 25
"8 Square", Plot No. 26, Balasubramanian
Street,
Sapthagiri Nagar, Valsaravakkam,
Chennai-600116.
Email:
rpforpdotg.chennai@3dresolutionservices. ...Respondent No.1
com
2. RCC e-Construct Private Limited,
Resolution Applicant,
C-74, Sushant Lok, Phase 1, Gurgaon,
Haryana 122002. ...Respondent No.2
Email: [email protected]
3. W.M. Mohanasundaram
S/o W. B. Meikandasivam
Flat No. 27, Sai Engineers Apartment,
Block 1,
Maduraimeenashipuram, Iyyanchery,
Urapakkam,
Kancheepuram District - 603210
Email : [email protected] ...Respondent No.3
4. Mr. Palaranga Sivakumar
S/o Mr. Range Reddy
25.10.429, Chaithanya Puri Colony,
Vedayapalem, Nellore, Vengalarao Nagar,
Andhra Pradesh - 524004
Email : [email protected] ...Respondent No.4
5. T. Selvakumar
26, NCT Nagar, Near Shanthi Nagar,
Chidambaram - 600001.
Email : [email protected] ...Respondent No.5
6. N. Rajammal
No. 1/81 Mariamman Koil Street,
Ayankollankondan,
Rajapalayam (Taluk) - 626142. ...Respondent No.6
7. Mr. R.S. Girish Babu
S/o R. Satyanarayana
Rep. by his POA Mr. R. Satyanarayana
SRO Royapuram,
Old No. 236, Govindappa Naicken Street,
Near Seven Well Market, Chennai - 600001
Email : [email protected]
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
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[email protected] ...Respondent No.7
Present:
For Appellants : Mr. E. Om Prakash, Senior Advocate
For Ms. Madhusmita Bora, Advocate.
For Respondents : Mr. Ravi Rajagopalan, Advocate for
R-1/Erstwhile RP.
Mr. P.H. Arvindh Pandian, Senior Advocate
For R2/ Successful Resolution Applicant
For Ms. Anannya Gosh,
Ms. Mrinalini Misra,
And Ms. Ragha Sudha, Advocates
For R2/ Successful Resolution Applicant.
With
TA No. 34 of 2021
Company Appeal (AT) (Ins.) No. 454 of 2020
[Arising out of Order dated 13.12.2019 passed by the Tribunal/National
Company Law Tribunal, Division Bench-I, Chennai Bench in
MA/554/2019, MA/626/2019 & MA/629/2019 in CP/193/IB/2018]
IN THE MATTER OF:
M/s. Sai Trading and Interiors
Represented by its partner Mr. S. Baskar,
No. 134, Lakshmi Apartments,
Ground Floor NTR Street,
Rangarajapuram, Kodambakkam,
Chennai - 600024, Tamil Nadu ...Appellant
Versus
1. Mr. Sundaresan Nagarajan,
IBBI/IPA-001/IP-P00418/2017-
2018/10741
Resolution Professional,
M/s. P DOT G CONSTRUCTIONS PRIVATE
LTD.,
(CIN): U45200TN2007PTC063625
"8 Square", Plot No. 26, Balasubramanian
Street,
Sapthagiri Nagar, Valsaravakkam,
Chennai-600116.
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
6 of 25
Email:
rpforpdotg.chennai@3dresolutionservices. ...Respondent No.1
com
2.
RCC e-Construct Private Limited,
Resolution Applicant,
C-74, Sushant Lok, Phase 1, Gurgaon,
Haryana 122002. ...Respondent No.2
Email: [email protected]
Present:
For Appellant : Mr. E. Om Prakash, Senior Advocate
For Ms. Madhusmita Bora, Advocate.
For Respondents : Mr. Ravi Rajagopalan, Advocate for
R-1/Erstwhile RP.
Mr. P.H. Arvindh Pandian, Senior Advocate
For R2/ Successful Resolution Applicant
For Ms. Anannya Gosh,
Ms. Mrinalini Misra,
and Ms. Ragha Sudha, Advocates
For R2/ Successful Resolution Applicant.
With
TA No. 35 of 2021
Company Appeal (AT) (Ins.) No. 455 of 2020
[Arising out of Order dated 13.12.2019 passed by the Tribunal/National
Company Law Tribunal, Division Bench-I, Chennai Bench in
MA/554/2019 & MA/878/2019 in CP/193/IB/2018]
IN THE MATTER OF:
Themes Adz.
Represented by its partner
Mrs. C.S. Ganjalakshmi,
No. F1, 1st Floor, New No. 10, Pace Park,
6th Cross Street,
Shenoy Nagar, Chennai - 600030 ...Appellant
Versus
1. Mr. Sundaresan Nagarajan,
IBBI/IPA-001/IP-P00418/2017-
2018/10741
Resolution Professional,
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
7 of 25
M/s. P DOT G CONSTRUCTIONS PRIVATE
LTD.,
(CIN): U45200TN2007PTC063625
"8 Square", Plot No. 26, Balasubramanian
Street,
Sapthagiri Nagar, Valsaravakkam,
Chennai-600116.
Email:
rpforpdotg.chennai@3dresolutionservices.
com ...Respondent No.1
2. RCC e-Construct Private Limited,
Resolution Applicant,
C-74, Sushant Lok, Phase 1, Gurgaon,
Haryana 122002.
Email: [email protected] ...Respondent No.2
Present:
For Appellant : Mr. E. Om Prakash, Senior Advocate
For Ms. Madhusmita Bora, Advocate.
For Respondents : Mr. Ravi Rajagopalan, Advocate for
R-1/Erstwhile RP.
Mr. P.H. Arvindh Pandian, Senior Advocate
For R2/ Successful Resolution Applicant
For Ms. Anannya Gosh,
Ms. Mrinalini Misra,
and Ms. Ragha Sudha, Advocates
For R2/ Successful Resolution Applicant.
With
TA No. 36 of 2021
Company Appeal (AT) (Ins.) No. 457 of 2020
[Arising out of Order dated 13.12.2019 passed by the Tribunal/National
Company Law Tribunal, Division Bench-I, Chennai Bench in
MA/554/2019 & MA/170/2019 in CP/193/IB/2018]
IN THE MATTER OF:
Mr. G. Balaji
S/o. Mr. C.N. Govindaraj,
No. 20/1, Bhajanai Koil Street, ...Appellant
Redhills, Chennai - 600052
Versus
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
8 of 25
1. Mr. Sundaresan Nagarajan,
IBBI/IPA-001/IP-P00418/2017-
2018/10741
Resolution Professional,
M/s. P DOT G CONSTRUCTIONS PRIVATE
LTD.,
(CIN): U45200TN2007PTC063625
"8 Square", Plot No. 26, Balasubramanian
Street,
Sapthagiri Nagar, Valsaravakkam,
Chennai-600116.
Email:
rpforpdotg.chennai@3dresolutionservices.
com ...Respondent No.1
2. RCC e-Construct Private Limited,
Resolution Applicant,
C-74, Sushant Lok, Phase 1, Gurgaon,
Haryana 122002.
Email: [email protected] ...Respondent No.2
3. Mr. N. Selvakumar
S/o M. Natarajan
No. 4A, Jayalakshmi Apartments,
Suba Shree Nagar Extension,
Mugalivakkam, Chennai - 600125 ...Respondent No.3
4. Mr. Paranthaman Gopikaramanan
S/o Gopikramanan
509, Phase - II, RTO Road,
Sathuvachari, Vellore - 632009 ...Respondent No.4
5. P. Sharan Thrishul Reddy
S/o P. Sreenivasulu Reddy,
5E, Sukruthi Villa Upstairs,
Green Medow Colony,
1st Street, Kilapauk Garden
Kilpauk, Chennai - 600010 ...Respondent No.5
6. R.D. Muralidaran
S/o Mr. M.R. Devakumar
No. 4C, Chinna Mettupalayam
Kaladipet, Thiruvottiyur,
Chennai - 600019 ...Respondent No.6
7. Mr. R. Sujatha
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
9 of 25
D/o K. Rajavel
No. 93/8, 5th Cross Street,
MKB Nagar, Vysarpadi,
Chennai - 600139 ...Respondent No.7
8. K. Vinayagam
S/o Kannappan
9/33, Arani Rangan Street,
Old Washermenpet, Chennai - 600021 ...Respondent No.8
9. O Neetha Reddy
Flat No. 3C, Plot No. 47, 48,
Plunni Lilly Residency,
Khana Mitta (Near Hitech City),
Hyderabad - 500084,
Telengana ...Respondent No.9
Present:
For Appellant : Mr. E. Om Prakash, Senior Advocate
For Ms. Madhusmita Bora, Advocate.
For Respondents : Mr. Ravi Rajagopalan, Advocate for
R-1/Erstwhile RP.
Mr. P.H. Arvindh Pandian, Senior Advocate
For R2/ Successful Resolution Applicant
For Ms. Anannya Gosh,
Ms. Mrinalini Misra,
and Ms. Ragha Sudha, Advocates
For R2/ Successful Resolution Applicant.
With
TA No. 37 of 2021
Company Appeal (AT) (Ins.) No. 470 of 2020
[Arising out of Order dated 13.12.2019 passed by the Tribunal/National
Company Law Tribunal, Division Bench-I, Chennai Bench in
MA/554/2019 and MA/ 625/ 2019 in CP/193/IB/2018]
IN THE MATTER OF:
M/s Sai Enterprises
Represented by its Proprietrix,
Mrs. Shakila Hemachandran,
No. 93B, SRP Colony Vth Peravallur,
Chennai - 600082 ...Appellant
Versus
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
10 of 25
1. Mr. Sundaresan Nagarajan,
IBBI/IPA-001/IP-P00418/2017-
2018/10741
Resolution Professional,
M/s. P DOT G CONSTRUCTIONS PRIVATE
LTD.,
(CIN): U45200TN2007PTC063625
"8 Square", Plot No. 26, Balasubramanian
Street,
Sapthagiri Nagar, Valsaravakkam,
Chennai-600116.
Email:
rpforpdotg.chennai@3dresolutionservices.
com ...Respondent No.1
2. RCC e-Construct Private Limited,
Resolution Applicant,
C-74, Sushant Lok, Phase 1, Gurgaon,
Haryana 122002.
Email: [email protected] ...Respondent No.2
Present:
For Appellant : Mr. E. Om Prakash, Senior Advocate
For Ms. Madhusmita Bora, Advocate.
For Respondents : Mr. Ravi Rajagopalan, Advocate for
R-1/Erstwhile RP.
Mr. P.H. Arvindh Pandian, Senior Advocate
For R2/ Successful Resolution Applicant
For Ms. Anannya Gosh,
Ms. Mrinalini Misra,
And Ms. Ragha Sudha, Advocates
For R2/ Successful Resolution Applicant.
With
TA No. 50 of 2021
Company Appeal (AT) (Ins.) No. 215 of 2020
[Arising out of Order dated 13.12.2019 passed by the Tribunal/National
Company Law Tribunal, Division Bench-I, Chennai Bench in
MA/554/2019 in CP/193/IB/2018]
IN THE MATTER OF:
Innova Home buyers Neyveli Association
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
11 of 25
(Registered vide No.
SRG/Cuddalore/24/2019)
Through its Vice-President,
T. Thamizhmaran,
S/o. P. Thambusamy,
R/o E-163, Anna Road, Block 17
Neyveli Ts, Kurinjipadi, Cuddalore,
Tamil Nadu - 607801. ...Appellant
Versus
1. P dot G Construction Pvt. Ltd.
Having Registered Office at
No. 26, 8 Square,
Porur, Tamil Nadu - 600116
Through its Resolution Professional
Mr. Sundaresan Nagarajan
Aa 60/3, 4th Street,
Anna Nagar (west), Chennai,
Tamil Nadu - 600040 ...Respondent No.1
2. Mr. Sundaresan Nagarajan,
Resolution Professional of Respondent
No. 1
Aa 60/3, 4th Street,
Anna Nagar (west), Chennai, ...Respondent No.2
Tamil Nadu - 600040
3. DMI Finance Private Limited
Through its director
Express Building, 3rd Floor,
No. 9-10, Bahadur Shah Zafar
Marg, New Delhi - 110002. ...Respondent No.3
4. RCC E-Construct Private Limited,
Resolution Applicant,
C-74, Sushant Lok, Phase 1, Gurgaon,
Haryana 122002.
Email: [email protected] ...Respondent No.4
Present:
For Appellant : Ms. Shabnam Banu, Advocate
Ms. Sushil Sarayu, Advocate.
For Respondents : Mr. Ayush Gupta, Advocate for R-1.
Mr. Ashish Dholakia, Senior Advocate for R2.
Mr. Kinshuk Chatterjee, Advocate & Amicus
Advocates & Solicitor for R3
Ms. Anannya Gosh &
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020
12 of 25
Mr. Dushyant Manocha , Advocates for R4.
J U D G M E N T
(Virtual Mode) NARESH SALECHA, MEMBER (TECHNICAL):
The Present `Appeals' are filed against the common 'impugned order' dated 13.12.2019, passed in MA/ 554/ 2019, MA/ 877/ 2019, MA/ 630/ 2019, MA/ 879/ 2019, MA/ 874/ 2019, MA/ 626/ 2019 & MA/ 629/ 2019, MA/ 878/ 2019, MA/ 170/ 2019 and MA/ 625/ 2019 in CP/ 193/ IB/ 2018 by the 'Adjudicating Authority' (National Company Law Tribunal, Chennai Bench), whereby, the 'Adjudicating Authority' had dismissed the `Miscellaneous Applications', filed under Insolvency & Bankruptcy Code, 2016 (in short 'I & B Code, 2016') Brief Facts:
2.
Vipras Adz CA (AT) (Ins.) No. 442 of 2020
B. Akhilandeswari CA (AT) (Ins.) No. 443 of 2020
Mrs. S. Ravi CA (AT) (Ins.) No. 444 of 2020
P. Krishnamoorthy CA (AT) (Ins.) No. 445 of 2020
Sai Trading and Interiors CA (AT) (Ins.) No. 454 of 2020
Themes Adz CA (AT) (Ins.) No. 455 of 2020
G. Balaji CA (AT) (Ins.) No. 457 of 2020
Sai Enterprises CA (AT) (Ins.) No. 470 of 2020
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 13 of 25 The aforesaid 'Appellants' as indicated above with different CA (AT) (Ins.) Nos. are various 'Operational Creditors' of M/s P Dot G Constructions Pvt. Ltd. & Anr. who are aggrieved by the common 'impugned order' dated 13.12.2019 and have filed different eight appeals.
Innova Homebuyer Neyveli CA (AT) (Ins.) No. 215 of 2020 Association The aforesaid 'Appellant' as indicated above with CA (AT) (Ins.) No. 215 of 2020 is an Association of the Homebuyers under caption 'Innova Homebuyer Neyveli Association' has also filed an appeal against the same common 'impugned order' dated 13.12.2019.
As such, there are total nine appeals before this 'Appellate Tribunal' against the same common 'impugned order' and hence all these nine appeals are being taken up together in the following discussions.
3. The 'Corporate Insolvency Resolution Process', was initiated against the 'M/s P Dot G Constructions Pvt. Ltd. & Anr.' on 13.07.2018 and based on the recommendations of 'Committee of Creditors' , the 'Adjudicating Authority' approved the 'Resolution Plan' of 'Successful Resolution Applicant' viz. M/s RCC e-Construction Pvt. Ltd.
4. Aggrieved by above 'Resolution Plan' which provides insufficient settlement of the claims of the 'Appellants', the `Appeals', have been filed.
5. Several issues have been raised by the 'Appellants' in above `Appeals', before this 'Appellate Tribunal' which, inter-alia, include issues regarding fairness of 'Resolution Plan' providing meagre settlement money to the Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 14 of 25 'Appellants' for examples- only 1.5% to the 'Operational Creditors' of their claims, non-initiation of the cases by the 'Resolution Professional' for the fraudulent, preferential, avoidance and extortionate transactions.
6. The `Appeals' also challenge the under valued `Liquidation Value', the 'Resolution Plan' amount, being lower than the `Liquidation Value', `exorbitant interest charges', by the 'Financial Creditors' in their claims, wrong dealing with the aspects of `Security Interest', claimed by the 'Financial Creditors', etc.
7. The 'Appellants' have submitted that the 'impugned order' was pronounced on 13.12.2019, however certified copy was delivered to the 'Appellants' on 03.02.2020 and the appeal was filed on 02.03.2020 as such the appeals have been filed within the limitation period.
8. The Learned Counsel for the Respondent No. 1 however have taken the plea that the appeals cannot be entertained since these are `barred by the limitation', as these fails to meet the requirements, as stipulated in Section 61(2) of the I & B Code, 2016.
9. Since, the initial hurdle of the limitation is required to be looked into, this 'Appellate Tribunal', in this `Judgment', examines the same, as it goes to the `root of the matter of `maintainability' of these `Appeals'.
10. Before proceeding further, it is therefore warranted, to look into the specific provisions regarding the limitations as provided in I & B Code, 2016', along with the Rule 22(2) of 'National Company Appellate Tribunal Rules 2016', further relevant and comparable rules on the subject including the 'Companies Act, 2013'.
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 15 of 25 "22. Presentation of appeal.- (1) Every appeal shall be presented in Form NCLAT-1 in triplicate by the appellant or petitioner or applicant or respondent, as the case may be, in person or by his duly authorised representative duly appointed in this behalf in the prescribed form with stipulated fee at the filing counter and non-compliance of this may constitute a valid ground to refuse to entertain the same. (2) Every appeal shall be accompanied by a certified copy of the impugned order.
(3) All documents filed in the Appellate Tribunal shall be accompanied by an index in triplicate containing their details and the amount of fee paid thereon. (4) Sufficient number of copies of the appeal or petition or application shall also be filed for service on the opposite party as prescribed. (5) In the pending matters, all other applications shall be presented after serving copies thereof in advance on the opposite side or his advocate or authorised representative. (6) The processing fee prescribed by the rules, with required number of envelopes of sufficient size and notice forms as prescribed shall be filled along with memorandum of appeal."
[emphasis supplied] "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 Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 16 of 25 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.
(3) An appeal against an order approving a resolution plan under section 31 may be filed on the following grounds, namely:--
(i) the approved resolution plan is in contravention of the provisions of any law for the time being in force;
(ii) there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period;
(iii) the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board;
(iv) the insolvency resolution process costs have not been provided for repayment in priority to all other debts; or
(v) the resolution plan does not comply with any other criteria specified by the Board.
(4) An appeal against a liquidation order passed under section 33 may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order."
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 17 of 25 [emphasis supplied]
11. From above Section 61(2) of the I & B Code, 2016, that an `Appeal', is required to be filed, within 30 days, before this 'Appellate Tribunal'. However, as per proviso to Sub - Section (2) of Section 61 of the I & B Code, 2016 this 'Appellate Tribunal' may allow further period not exceeding 15 days, based on the `Appeal', filed before it provided sufficient cause for non filing the `Appeal' have been submitted. This, however, does not clarify as to 30 days period shall be counted w.r.t. which date in contrast to similar provision made under Section 421 of the 'Companies Act, 2013' which reads as under :
"421. Appeal from orders of Tribunal - (1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal.
(2) No appeal shall lie to the Appellate Tribunal from an order made by the Tribunal with the consent of parties.
(3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order of the Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed:
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period.
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 18 of 25 (4) On the receipt of an appeal under sub-section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.
(5) The Appellate Tribunal shall send a copy of every order made by it to the Tribunal" and the parties to appeal."
[emphasis supplied] The 'Companies Act, 2013' is therefore very clear where it has been specified that 45 days period will be counted from the date on which a copy of the order of the 'Tribunal' is made available to the `Person Aggrieved'.
12. This `Tribunal', again refers to Section 61(1) of the I & B Code, 2016 which stipulates 'notwithstanding anything to the contrary contained under the Companies Act, 2013....' which implies that the provision of the 'Companies Act, 2013' as contained in Section 421 is not applicable to Section 61(1) r/w Section 61(2) of the I & B Code, 2016.
13. It is well settled `principle of interpretation', that the ingredients of a particular section will have to be read on the basis of plain and simple language therein, ofcourse, based on harmonious construction, without causing any volatile harm / injury to the language found therein. Further, when the language of the section is quite `explicit', `unequivocal' and `unambiguous', the same admits of no exception, in the considered opinion of this 'Appellate Tribunal'.
Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 19 of 25
14. This 'Appellate Tribunal' will advert to the Citations / Judgments relevant on the `issue of limitation', being discussed, before arriving at a final conclusion. The decision of the Hon'ble Supreme Court of India in V. Nagarajan vs. SKS Ispat and Power Limited and Ors. (2022) 2 SCC, reads as under:
21. `` The answer to the two issues set out in Section C of the judgement- (i) when will the clock for calculating the limitation period run for proceedings under the IBC; and (ii) is the annexation of a certified copy mandatory for an appeal to the NCLAT against an order passed under the IBC
- must be based on a harmonious interpretation of the applicable legal regime, given that the IBC is a Code in itself and has overriding effect. Sections 61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the "order is made available to the aggrieved party", in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of the IBC, the aggrieved party is expected to exercise due diligence and apply for a certified copy upon pronouncement of the order it seeks to assail, in consonance with the requirements of Rule 22(2) of the NCLAT Rules. Section 12(2) of the Limitation Act allows for an exclusion of the time requisite for obtaining a copy of the decree or order appealed against. It is not open to a person aggrieved by an order under the IBC to await the receipt of a free certified copy under Section 420(3) of the Companies Act 2013 read with Rule 50 of the NCLT and prevent limitation from running. Accepting such a construction will upset the timely framework of the IBC. The litigant has to file its appeal within thirty days, which can be extended up to a period of fifteen days, and no more, Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 20 of 25 upon showing sufficient cause. A sleight of interpretation of procedural rules cannot be used to defeat the substantive objective of a legislation that has an impact on the economic health of a nation.
22. On the second question, Rule 22(2) of the NCLAT Rules mandates the certified copy being annexed to an appeal, which continues to bind litigants under the IBC. While it is true that the tribunals, and even this Court, may choose to exempt parties from compliance with this procedural requirement in the interest of substantial justice, as re-
iterated in Rule 14 of the NCLAT Rules, the discretionary waiver does not act as an automatic exception where litigants make no efforts to pursue a timely resolution of their grievance. The appellant having failed to apply for a certified copy, rendered the appeal filed before the NCLAT as clearly barred by limitation.
23. The appellant was present before the NCLT on 31 December 2019 when interim relief was denied and the miscellaneous application was dismissed. The appellant has demonstrated no effort on his part to secure a certified copy of the said order and has relied on the date of the uploading of the order (12 March 2020) on the website. The period of limitation for filing an appeal under Section 61(1) against the order of the NCLT dated 31 December 2019, expired on 30 January 2020 in view of the thirty-day period prescribed under Section 61(2). Any scope for a condonation of delay expired on 14 February 2020, in view of the outer limit of fifteen days prescribed under the proviso to Section 61(2). The lockdown from 23 March 2020 on account of the Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 21 of 25 COVID-19 pandemic and the suo motu order of this Court has had no impact on the rights of the appellant to institute an appeal in this proceeding and the NCLAT has correctly dismissed the appeal on limitation. Accordingly, the present appeal under Section 62 of the IBC stands dismissed.'' [emphasis supplied]
15. From the ratio laid down, in the afore cited decision of the Hon'ble Supreme Court of India in V. Nagarajan (Supra) makes it clear that the I & B Code, 2016, has an over riding effect and section 61(1) and 61(2) of the I & B Code, 2016, explicitly, conspicuously silent on the requirement of limitation, being computed `from the date when the order', is made available to the `Aggrieved Parties' in contradiction to Section 423 of the 'Companies Act, 2013'. This Judgment, further makes it clear that the `onus' of making attempts, to obtain the certified copy squarely lies with the 'Applicant'. This 'Appellate Tribunal' is also conscious to the fact that the proceedings under I & B Code, 2016 are intended to be as summary proceedings, in contrast to other Civil Courts proceedings, which are `adversarial in nature'.
16. This 'Tribunal', refers to the Judgment of this 'Appellate Tribunal' in the matter of Exide Industries Ltd. Vs. Jitender Kumar Jain, Resolution Professional of Morakhia Copper & Alloys Pvt. Ltd., (vide Company Appeal (AT) (Insolvency) No. 1169 of 2022), wherein this 'Appellate Tribunal' had also quoted para- 21 of the judgment pronounced by the Hon'ble Supreme Court of India in V. Nagarajan vs. SKS Ispat and Power Limited and Ors. (2022) 2 SCC (Supra) and in para-6 of the Judgment passed by Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 22 of 25 this 'Appellate Tribunal' which is being discussed herein is also relevant and reproduced as under: -
"Para-6. In view of the law laid down by the Hon'ble Supreme Court, the limitation for filing the Appeal begins when order was pronounced. The mere fact that Appellant received free certified copy of the Impugned Order on 27th July, 2022, the period of limitation shall not stop running after passing of the order/ judgment. Our jurisdiction to condone the delay is only limited to 15 days under Section 61(2) proviso. There being delay of more than 15 days, the Delay Condonation Application cannot be allowed. Application is dismissed. Consequently, the Memo of Appeal is rejected."
[emphasis supplied]
17. It is the case of the 'Appellants' that on 03.02.2020 'Certified Copy' was delivered and as such the period of limitation is specified in Sub-Section 2 of Section 61 of the I & B Code, 2016 is complied with.
However, from the record made available as well as from the averments made, it is noted that the 'impugned order' was pronounced on 13.12.2019, and the period of 30 days as per Section 61 of the I & B Code, 2016 expired, on 12.01.2020. Even, if 15 days which could have been extended by this 'Appellate Tribunal', the limitation period would have expired on 27.01.2020. Taking into account, the `Judgments pronounced by the Apex Court', as well as this 'Appellate Tribunal', this `Tribunal', without any haziness comes to a firm conclusion that, it was for the `Aggrieved Parties', to make earnest Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 23 of 25 efforts, for obtaining the `Certified' copy and take further necessary action, as stipulated in Section 61 of the I & B Code, 2016.
18. This 'Appellate Tribunal', quite in the fitness of things, observes that, the `Time is the Essence of the Code', for the purpose of maximisation of the `Value' of the `Assets', and further that the I & B, Code, 2016, is an `inbuilt and self-contained Code', over riding other `Laws', as per Section 238 of the Code. As a matter of fact, mere procedure formalities cannot be allowed to cause `undue delays' and in this perspective, the `onus' lies on the 'Appellants' for being `vigilant', and take necessary action, to protect and exercise their `legal rights', in a timely fashion.
19. It cannot be the case of the 'Appellants' that, despite being `Parties' and in knowledge of pronouncement of the `Order', by the 'Adjudicating Authority', they have chosen not to be pro-active in obtaining the required documents including, 'Certified Copy of the Order', to file the `Appeal', before this 'Appellate Tribunal'.
20. This 'Appellate Tribunal', therefore, comes to an irrefutable and purposive conclusion that the 'Appellants', fail to meet the requirements of limitations, as stipulated in I & B Code, 2016. Hence, these `Appeals', Viz. TA (AT) No. 30 of 2021 (Comp. App (AT) (CH) (INS) No. 442 of 2020) , TA (AT) No. 31 of 2021 (Comp. App (AT) (CH) (INS) No. 443 of 2020), TA (AT) No. 32 of 2021 (Comp. App (AT) (CH) (INS) No. 444 of 2020), TA (AT) No. 33 of 2021 (Comp. App (AT) (CH) (INS) No. 445 of 2020), TA (AT) No. 34 of 2021 (Comp. App (AT) (CH) (INS) No. 454 of 2020), TA (AT) No. 35 of 2021 (Comp. App (AT) (CH) (INS) No. 455 of 2020), TA (AT) No. 36 of 2021 (Comp. App (AT) (CH) Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 24 of 25 (INS) No. 457 of 2020) and TA (AT) No. 37 of 2021 (Comp. App (AT) (CH) (INS) No. 470 of 2020) are dismissed on the `point of Limitation'. No costs. The connected pending `Interlocutory Applications', if any, are Closed. At this juncture, this `Tribunal', makes it quite clear that, it has not traversed into the merits of the matter in these eight `Appeals'. TA (AT) No. 50 of 2021 (Company Appeal (AT) (INS) No. 215 of 2020):
21. In so far as the TA (AT) No. 50 of 2021 (Comp. App (AT) (INS) No. 215 of 2020 is concerned, the IA 576 of 2020 (Condone Delay Application), filed by the `Applicant / Appellant', was allowed by this `Tribunal', as early as on 12.08.2021. Hence, the main `Company Appeal (AT) (INS) No. 215 of 2020, will be dealt with separately for `deliverance of Judgment', in due course.
[Justice M. Venugopal] Member (Judicial) [Naresh Salecha] Member (Technical) 06/12/2022 Simran Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 25 of 25