Gold Ispat And Steel vs Budhale Engineer Pvt Ltd & Ors

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Restoration Application No. 7 of 2024 in I.A. No. 1194 of 2024 in Comp. App. (AT) (Ins) No. 49 of 2023

IN THE MATTER OF: Gangaprasad R Tripathi ...Appellant

Versus Budhale Engineer Pvt. Ltd. & Anr. ...Respondents

Present: For Appellant : Mr. Vishal Arun Mishra, Ms. Rupali Panwar Advocates. For Respondents : Ms. Aroshi Pal, Ms. Bandita & Ms. Monica, Advocates.

ORDER

(Hybrid Mode)

26.09.2024: Restoration Application No. 7 of 2024:- The application

bearing I.A. No. 598 of 2020 filed under Section 9 by the Operational

Creditor was disposed of by the Tribunal vide its order dated 11.02.2021,

which is reproduced as under:

"I.A. 598/2020:- The matter is taken up through virtual hearing. The above application is filed by Resolution Professional under Section 12A of the IBC, 2016 seeking withdrawal of the main company petition bearing no. 1859/2019. The Counsel appearing for the RP file additional affidavit bringing on record the details of payment made by the corporate debtor by entering into the consent terms and accordingly, the additional affidavit is taken on record and withdrawal of the company petition is permitted.

Comp. App. (AT) (Ins) No. 49 of 2023 -2-

In view of the above, the Interlocutory application no. 598/2020 is allowed and Company Petition 1859/2019 is also stands disposed of. The matter need not be listed on board again."

2. Aggrieved against this order, the present appeal has been filed

along with an application for condonation of delay bearing I.A. No. 175 of

2023. There was a delay of 356 days in filing of the appeal. The said

application was dismissed by this Tribunal on 11.01.2024 while passing

of the following order:

"11.01.2024:- I.A. No. 175 of 2023

This application is filed for seeking condonation of delay of

356 days in filing of the appeal. The Impugned Order was

passed on 11.02.2021 and the appeal has been filed on

28.01.2022.

The reason given in the application is that the Impugned

Order came to the knowledge of the Appellant on 30.04.2021.

Although it is well settled that in the IBC regime the limitation is

to be counted from the date of passing of the order and not from

the date of knowledge of the order but even if the date of

knowledge is taken for the purpose of counting the period of

limitation, the appeal has been filed on 28.01.2022 after knowing

about the Impugned Order on 30.04.2021 which is clearly barred

by limitation as there is a specific period of 30 days prescribed

under Section 61(2) of the Code which can further be extended for

a further 15 days in terms of Section 61 (2) proviso.

Comp. App. (AT) (Ins) No. 49 of 2023 -3-

The Hon'ble Supreme Court in case of National Spot

Exchange Limited Vs. Anil Kohli, Civil Appeal No. 6187 of 2019

has categorically held that the period of limitation cannot be

extended beyond the period of 15 days even resorting to Article

142 of the Constitution of India.

In view thereof, the application is hereby dismissed as not

maintainable."

and the Company Appeal (AT) (Ins.) No. 49 of 2023 was also

dismissed on the same day.

3. Now the present application has been filed for recalling of the order

and restoring the appeal for decision on merits.

4. After hearing counsel for the appellant, we are of the considered

opinion that once the appeal has been dismissed because the application

for condonation of delay has been dismissed then the present application

having been filed by the appellant for consideration of appeal on merits is

totally misconceived and not maintainable and hence, the present

application is hereby dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical)

sa/rr

Comp. App. (AT) (Ins) No. 49 of 2023