Dnyaneshwar Krishnaji Takalkar & Ors vs 1. B.D.Impex Pvt.Ltd & Ors

Dnyaneshwar Krishnaji Takalkar Suspended Director of Kohinoor Precision Component Ltd. At Post Koregaon Bhima, Taluk Shirur, Pune - 412 207 Maharashtra. ...Appellant No. 1

Praveen Dnyaneshwar Takalkar Suspended Director of Kohinoor Precision Component Ltd. R/o 439, Nagar Road, Lagat Koregav Bhima, Data Mandir, M Nagar Road Vadhu Burast Alagatach, Pune - 412 216 Maharashtra. ...Appellant No. 2

Sachin Dnyaneshwar Takalkar Suspended Director of Kohinoor Precision Component Ltd. R/o 584, Nagar Road, Lagat Koregav Bhima, Data Mandir, M Nagar Road Vadhu Burast Alagatach, Pune - 412 216 Maharashtra. ...Appellant No. 3

Versus

B. D. Impex Pvt. Ltd. Office at 109/110, Abhishek Premises, 1st Floor, Plot No. C-5, Dalia Industrial Estate Office, New link Road, Andheri (W) Mumbai - 400 053. Maharashtra. ...Respondent No.1

C. S. Anagha Anasingaraju Liquidator Office at 1-2 Aishwarya Sankul, G.A. Kulkarni, path opposite

Cont'd..../ -2-

Joshi Railway Museum Kothraod Pune - 411038. Maharashtra ...Respondent No.2

C. S. Anagha Anasingaraju Interim Resolution Professinal Office at 1-2 Aishwarya Sankul, G.A. Kulkarni, path opposite Joshi Railway Museum Kothraod Pune - 411038. Maharashtra ...Respondent No.3

Kohinoor Precision Component Ltd. Through IRP Registered office at Narendra Chhaya, Gate No. 480, Koregaon Bhima, Taluk Shirur, Pune - 412 216. Maharashtra. ...Respondent No.4

For Appellants: Mr. Vijay Kumar, Advocate. For Respondents: Mr. Avinash Khanolkar, Advocate for R-2, 3 & 4.

ORDER

(Virtual Mode)

25.08.2021: This Appeal is for admission. Heard Learned Counsel for the

Appellant. The present Appeal has been filed against the impugned order dated

2nd January, 2020 filed in C.P. No. 2323/I&B/2018 (Annexure P-1) passed by the

Adjudicating Authority (National Company Law Tribunal), Mumbai Bench. The

learned counsel has been called upon by us to address as to how Appeal can be

said to be within limitation.

2. The Learned Counsel for the Appellant refers to para 6 of the Appeal, which

reads as under:

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"6. Limitation - the Appellants declare that the appeal is within the period of 30 days specified in section 61 of the Insolvency and Bankruptcy Code, 2016.

The Company Petition was initiated by the Respondent no. 1 in the month of June, 2018, without jurisdiction, cause of action and the Hon'ble NCLT, Mumbai on 02/01/2020 passed the impugned order, under challenge in the present appeal including the letter dated 17.2.2021 issued by the respondent no. 2. Annexed herewith and marked as Annexure P-2 is true copy of letter dated 17.02.2021."

3. The Learned Counsel submits that as the Appellant has stated in Para 6 of

the Appeal that the Appeal was filed within period of 30 days and so it must be

treated as within limitation. On being asked how, the Counsel repeats the

submission.

4. Annexure P-1 - Copy of the impugned order dated 2nd January, 2020, which

has been relied on, shows that the certified true copy was issued on 7th January,

2020. The Learned Counsel for the Appellant now says that he may be given time

to file a separate application on the question of delay as the Registry has not raised

any objection regarding condonation of delay in filing of the Appeal.

5. Thus, question if Appeal is within limitation or not is matter for this Tribunal

to look into before exercising jurisdiction. Section 61 (1) and (2) of the Insolvency

and Bankruptcy Code, 2016 (for short 'IBC') which is relevant is as under:

"61. (1) Notwithstanding anything to the contrary contained under the Companies Act 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:

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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. Considering the fact that the impugned order was passed on 2nd January,

2020 and certified true copy was issued on 7th January, 2020, even if one has to

calculate delay from the time of issue of certified true copy it would start running

on 7th January, 2020 and at the expiry of 30 days the period available to this

Tribunal which can be condoned would be only 15 days. The Appeal should have

been filed in 30 days + 15 days = 45 days; i.e. by 21st February, 2020. It has been

filed on 10th March, 2021. The Learned Counsel submits that he may be given

opportunity to give reasons for the delay for which he wants to file an application.

Looking to the provisions as mentioned above, after the period of Appeal, beyond

period of 15 days this Tribunal would have no jurisdiction to entertain the Appeal

whatever the reasons may be.

7. We find that the Appeal is time barred. The Appeal is dismissed as time

barred. No costs.

[Justice A.I.S. Cheema] The Officiating Chairperson

[Dr. Alok Srivastava] Member (Technical) Archana/gc.

Company Appeal (AT) (Insolvency) No. 299 of 2021