Ds Kulkarni & Company vs Mr. Manoj Kumar Agarwal

DS Kulkarni & Associates ...Appellant

Versus

Manoj Kumar Aggarwal ...Respondents

Present: For Appellant: Ms. Aakanksha Nehra, Advocate For Respondent: Mr. Varun Kalra, Mr. Shahan Ulla, Advocates for R- 1 Mr. Puneet Singh Bindra, Ms. Simran Jeet, Mr. Akshay Sharma, Mr. Rishabh Gupta, Mr. Sameer Sethi, Advocates for SRA

ORDER

Per: Justice Rakesh Kumar Jain:

05.09.2023: I.A. No. 3150 of 2023. This Application is filed for

condonation of delay of 12 days in filing of the present Appeal.

2. This Appeal has been filed against the Impugned Order dated 31st

March, 2023 by which Application filed by the Appellant through its

authorised representative for a direction that the claim filed by the Appellant

in Form-CA and Form-F be admitted and Appellant be classified as a Financial

Creditor at par with the Homebuyers has been dismissed.

3. The Appeal has been filed under Section 61 of the Code. The prescribed

period for filing the Appeal is 30 days. In case, the Appeal is not filed within

the period of 30 days then the Appeal can still be filed within a period of 15 -2-

days subject to the condition that the Appellant/Applicant shall have to assign

a sufficient reason, for not filing the Appeal within prescribed period of 30

days, to the satisfaction of the Appellate Authority.

4. In the present case, the Appellant has not filed the Appeal within the

period of 30 days. The Appeal has been filed after 12 days but within the period

of 15 days which is provided in Section 61(2) proviso.

5. The Appellant has to give sufficient cause in the Application which

should inspire confidence in the Appellate Authority to condone the delay for

not reaching the Appellate Authority within the prescribed period. In this

regard, it would be relevant to refer to the averments made in the Application

in which the Appellant has not stated as to how and why the delay has

occurred in not filing the Appeal within the prescribed period of 30 days from

the date of pronouncement of the Order dated 31st March, 2023. The entire

application contains the averments of the grounds of appeal. As a matter of

fact, the reason much less sufficient, for the purpose of condonation of delay

is conspicuous by its absence in the entire application. Therefore, there is

nothing for this Tribunal to appreciate about the sufficient cause for not

approaching the Appellate Authority within the time prescribed or even

thereafter within the window of 15 days.

6. Since the Appeal has been filed under Section 61 of the Code, therefore,

it would be relevant to refer to Section 61 of the Code which is as follows:

"Section 61. Appeals and Appellate Authority.

Company Appeal (AT) (Insolvency) No.924/2023 -3-

(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.

(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.

Company Appeal (AT) (Insolvency) No.924/2023 -4-

(4) An appeal against a liquidation order passed under section 33, or sub-section (4) of section 54L, or sub-section (4) of section 54N, may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order.

(5) An appeal against an order for initiation of corporate insolvency resolution process passed under sub-section (2) of section 54-O, may be filed on grounds of material irregularity or fraud committed in relation to such an order."

7. Section 61(1) provides a right of appeal to a person aggrieved by the

order of the Adjudicating Authority. Section 61(2) further provides a period of

30 days for filing the Appeal before the Appellate Tribunal under Section 61(1)

of the Code. In case, the Appeal is not filed within the prescribed period of 30

days, proviso to Section 61(2) provides for a period of 15 days within which

the Appeal can be filed satisfying the Appellate Authority that there was

sufficient cause for not filing the Appeal earlier. However, the period of 15 days

cannot be extended and the Appellate Tribunal does not have jurisdiction to

consider and condone the delay beyond the period of 15 days and in case the

Appellate Authority is satisfied that there has been a sufficient cause for not

filing the Appeal within the time prescribed or within the extended period, it

can condone the delay and hear the matter on merits. Therefore, sufficient

cause is the heart and soul of the application for condonation of delay which

is totally missing in this Application.

8. The law is very strict so far as the proceedings under the Insolvency and

Bankruptcy Code, 2016 is concerned as has been held by Hon'ble Supreme

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Court in the case of National Spot Exchange Limited Vs. Mr. Anil Kohli, RP

for Dunar Foods Limited, Civil Appeal No. 6187 of 2019 in which it has

been held that after the expiry of 15 days, the limitation cannot even be

condoned under Article 142 of the Constitution of India. Having said that, in

the absence of any averment made in the application for condonation of delay

in regard to sufficient cause, we do not find any reason to condone the delay

and the Application is thus hereby dismissed.

Company Appeal (AT) (Insolvency) No. 924 of 2023

1. Since, the Application has been dismissed by an order of even date,

therefore, the present Appeal is not duly constituted and the same is hereby

dismissed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Barun Mitra] Member (Technical)

[Mr. Arun Baroka] Member (Technical)

Basant/nn

Company Appeal (AT) (Insolvency) No.924/2023