Avail Financial Services Ltd vs Sun World City Pvt Ltd

Avail Financial Services Ltd. ...Appellant

Versus

Sun World City Pvt. Ltd. ...Respondent

Present: For Appellant: Mr. Sarvaswa Chhajer, Mr. Kartikeya Singh and Mr. Samarth Shandilya, Advocates. For Respondent:

ORDER

(Through Virtual Mode)

22.02.2021: I.A. No. 279 of 2021 is disposed of with direction to the Appellant

to file certified copy of the impugned order within two weeks of the same being

made available by the Adjudicating Authority, if the appeal survives for

consideration.

2. It appears that impugned order dated 4th October, 2019 has been passed

by the Adjudicating Authority (National Company Law Tribunal) Allahabad Bench

dismissing Appellant's application under Section 7 of the I&B Code on the ground

that the application is barred by limitation, debt did not fall within the purview of

financial debt and default was not established. The issue raised by the Appellant

in this appeal is that the Respondent has deducted TDS on interest accrued on

Cont'd....../ -2-

loan advanced to it which amounts to admission bringing default within the period

of limitation and default being computed on its basis, initiation of Corporate

Insolvency Resolution Process sought in terms of application filed under Section

7 of I&B Code is well within limitation.

2. After hearing learned counsel for the Appellant, we find that the impugned

order has been passed on 4th October, 2019. Appellant seeks condonation of delay

of 434 days in filing this appeal primarily on the ground that prior to imposition

of lockdown counsel for the Appellant Company had asked for certain documents

which Appellant Company failed to provide to learned counsel owing to Nationwide

Lockdown imposed by the Government and thereafter due to intervention of

lockdown and festival / court holidays there was delay in finalizing the draft of

appeal paper book. The ground projected is bereft of merit. There is a huge delay

of 434 days. Even if it be taken as true, failure to furnish documents necessary

for filing of the appeal by the Appellant Company to its learned counsel does not

constitute a sufficient ground to condone delay at least till 25th March, 2020 when

in the wake of outbreak of COVID 19 nationwide lockdown was imposed by the

Government. Under Section 61(2) of the I&B Code, every appeal under section

61(1) has to be filed within 30 days before this Appellate Tribunal which has

jurisdiction, on a sufficient cause being assigned, to condone delay not exceeding

15 days. As the appeal was required to be filed within a maximum period of 45

Company Appeal (AT) (Insolvency) No. 123 of 2021 -3-

days, even if the cause assigned would be sufficient cause within the meaning of

Section 61(2) proviso, from the date of order, that period of 45 days expired on

19th November, 2019. The nationwide lockdown was imposed on 25th March,

2020. Of course limitation has been extended from 25th March, 2020 in terms of

directions given by the Hon'ble Apex Court as also by this Appellate Tribunal in

suo moto jurisdiction which continue to be in force till date. However, there is

huge delay of 140 days beyond the ordinary period of limitation prescribed for

filing of appeal under Section 61 of I&B Code which is not within the jurisdiction

of this Appellate Tribunal to condone.

3. The Appellant's application for condonation of delay is rejected and appeal

is also dismissed as being barred by limitation.

[Justice Bansi Lal Bhat] Acting Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical) am/gc

Company Appeal (AT) (Insolvency) No. 123 of 2021