Gursharan Singh vs The State Trading Corporation Of India ...

IN THE MATTER OF: Mr. Gursharan Singh Director and Shareholder E-382, Second Floor, Greater Kailash, Part-I, New Delhi - 110008 ...Appellant

Versus

1. The State Trading Corporation of India Ltd. Registered Office at: 3rd Floor, Trade World, 'C' Wing, Kamala Mill, Senapati Bapat Marg, Lower Parel (West) Mumbai - 400013 ...Respondent No 1/ Operational Creditor

2. Spacevision Impex Pvt. Ltd. Through-Mr. Devinder Arora (Interim Resolution Professional) 1203, Vijaya Building, 17, Barakhamba Road, Connaught Place, New Delhi - 110001 Email Id: DEVINDER.RP@GMAIL.COM, Contact No. 9711405844 ...Respondent No. 2/ Corporate Debtor. Present:

For Appellant: Mr. Nikhil Nayyar, Sr. Advocate with Mr. Naveen Kr. Chaudhary and Mr. Divyanshu Rai, Advocates.

For Respondent: Dr. Maurya Vijay Chandra, R-1. Mr. Ashok Juneja, For RP, R-2. Ms. Sucheta Gupta (CS) For R-1.

JUDGMENT

(16th March, 2021)

A.I.S. Cheema, J.

1. Respondent No. 1/Operational Creditor (The State Trading Corporation of

India Limited) filed application under Section 9 of Insolvency and Bankruptcy

Code, 2016 (IBC in short) having C.P. No. IB-697/ND/2018 before the

Adjudicating Authority (National Company Law Tribunal, New Delhi, Court No.

4) and Application was admitted on 08th May, 2019 (Annexure A1-Page 90).

Thus, the present Appeal has been filed and along with Appeal I.A. No. 2596 of

2019 is filed for Condonation of Delay.

2. Present Judgment is being passed disposing the I.A. No. 2596 of 2019 for

Condonation of Delay.

3. The Appellant-Mr. Gurusharan Singh claims to be Director and

Shareholder of the Corporate Debtor-M/s. Spacevision Impex Private Limited.

The Appellant claims that the Impugned Order was passed ex-parte. According

to him, in the first week of June, 2019, an envelope from Mr. Devinder Arora-

Interim Resolution Profession (IRP in short) of Respondent No. 2 Corporate

Debtor was received in the absence of the Appellant. It is claimed that the

envelope was not opened and kept by wife of Appellant with other DAK. It is

Page | 2 I.A. No. 2596 of 2019 In Company Appeal (AT) (Insolvency) No. 853 of 2019 claimed that the wife is house-wife and she did not open envelope addressed to

the Appellant. Appellant claims that the Appellant came to know about the ex-

parte order dated 08th May, 2019 only on 25th June, 2019 when he returned

from his trip to Bangalore. It is claimed that the envelope did not contain the

copy of the Order dated 08th May, 2019. Appellant claims and it has been argued

that no free copy of the Order dated 08th May, 2019 was received by the Appellant

or the Corporate Debtor. The Corporate Debtor had not done any business since

2010. The Learned Counsel for the Appellant has argued and the Application

claims that the Appellant filed Application for inspection of records on 28th June,

2019 and the inspection was received on 05th July, 2019 and application for

certified copy was filed on 08th July, 2019 which was received on 15th July, 2019.

According to the Appellant then he had knowledge of the Impugned Order and

after taking necessary steps, the Appeal was filed on 13th August, 2019. Thus,

according to the Appellant, there is delay only of four days.

4. Respondent No. 1 to the Appeal (The State Trading Corporation of India

Limited) has filed Reply-Affidavit vide Diary No. 19254 opposing the Application

to condone the delay and in the Reply-Affidavit the averments made by the

Appellant are denied. According to the Respondent No. 1, the Appellant has been

regularly filing returns and has been showing address mentioned in the Ministry

of Corporate Affairs Data Base as registered address and copy of Annual Return

for 2017-2018 has been filed at Annexure A with the Reply-Affidavit. This

Respondent claims that the averments and arguments made regarding not

having knowledge till 25th June, 2019 is not acceptable. The Respondent No. 1

is claiming that the record of IRP shows that various efforts were made to serve

Page | 3 I.A. No. 2596 of 2019 In Company Appeal (AT) (Insolvency) No. 853 of 2019 the Appellant and Corporate Debtor as well as the other Director and the Appeal

is time-barred.

5. The IRP has filed Reply-Affidavit vide Diary No. 19273 and the Reply-

Affidavit claims that the IRP had sent communication that Corporate Insolvency

Resolution Process (CIRP in short) has been initiated against the Corporate

Debtor. According to the IRP, he has sent another letter dated 30th May, 2019

requesting the Suspended Board of Director of the Corporate Debtor the

Information/Documents/Books along with a copy of the Order dated 08th May,

2019. Copy of the said communication is at Annexure 1 Colly. The letter dated

30th May, 2019 addressed to the Corporate Debtor on registered address and the

two Directors includes Appellant. The letter dated 30.05.2019 (at Reply page 9)

shows that the letter was sent with copy of Impugned Order of National Company

Law Tribunal (NCLT in short) Order dated 08th May, 2019 enclosed. There is copy

of another letter at page 17 of the Reply. There reference is made to the IRP

being appointed and Information/Documents/Books etc. being sought. The

Reply of IRP shows that IRP also sent e-mail on the official e-mail as found on

the web-site of Ministry of Corporate Affairs (MCA in short) copy of which is filed

as Annexure 2 colly attaching orders of NCLT which e-mail is dated 30th May,

2019. The Reply further shows that the IRP visited the official address of the

Company as found on the portal of MCA and had carried copy of the Order dated

08th May, 2019 but at the concerned place there was no office/place of business.

He claimed that he took Phone Number from the care-taker and called Ms. Lata

and sent Whatsapp Message to her. The IRP claims that the said Lady stated

that the Appellant was out of country and that other Director Mr. Ravi Gupta

Page | 4 I.A. No. 2596 of 2019 In Company Appeal (AT) (Insolvency) No. 853 of 2019 had gone to hill station. According to the IRP, the Lady assured to convey the

message to Suspended Board of Directors regarding CIRP. Copy of the Screen

Short has been attached at Annexure 3. There is yet another effort made by the

IRP which shows that he sent a messenger with Letter dated 12.06.2019 copy of

which is at Annexure 4. The IRP got endorsement on Annexure 4 of receipt which

records that "Received on behalf of Mr. Ravi Gupta". There is signature, Mobile

Numbers and date 13th June, 2019. Mr. Ravi Gupta appears to be other Director

of the Corporate Debtor.

6. In the face of such documents being put on record by the IRP, who was

acting in official capacity, we are not convinced with the bare statement made

by the Appellant that he had gone to Bangalore and in his absence letter was

received by his wife in the first of week (date is not mentioned) and that he got

knowledge only on 25th June, 2019 when Corporate Debtor returned back. Such

claims of want of knowledge can be made for convenience.

7. If on the address of the Appellant, the IRP had served letter (as seen at

Page 241-252 of Volume II) dated 30th May, 2019 in the first week of June, 2019,

the communication having been served on adult member of the family of the

Appellant, service of the letter must be said to be complete on that date. The

Appellant has chosen not to put on record exact date of receipt of letter dated

30th May, 2019 in the first week of June, 2019. For convenience, we may take

the last day of the first week and treat that the letter was received on 07th June,

2019. If letter was received on 07th June, 2019, the Application for certified copy

was filed only after consuming 30 days on 08th July, 2019. The certified copy

was received on 15th July, 2019. After receiving the certified copy, the Appellant

Page | 5 I.A. No. 2596 of 2019 In Company Appeal (AT) (Insolvency) No. 853 of 2019 consumed another 28 days and the Appeal was filed only on 13th August, 2019.

This being so, the earlier consumed 30 days and subsequently consumed 28

days calculate to 58 days taken for filing of the Appeal. We are ignoring the

averments made regarding the time consumed for taking inspection as that does

not help in calculating limitation. This is so especially in the context of

communications which IRP had already sent with regard to the Impugned Order

dated 08th May, 2019. The IRP was acting in official capacity and with word

against word and we would rely on the IRP (and the letter dated 30.05.2019)

when he states that the communication dated 30th May, 2019 was sent along

with copy of the Impugned Order dated 08th May, 2019.

8. The argument that free copy was not served on the Appellant is not

relevant. IBC does not have provision to serve free copies. Even if one is to rely

on Section 421 (3) of the Companies Act, 2013, there is Judgment in the matter

of "Sagufa Ahmad and Ors. Vs. Upper Assan Plywood Products Pvt. Ltd". passed

by the Hon'ble Supreme Court of India in Civil Appeal Nos. 3007-3008 of 2020

which would be relevant. If the Appellant did not rely on supply of free copy and

applied for certified copy and filed Appeal based on certified copy then the

Appellant cannot rely on Section 421 (3) of the Companies Act, 2013, to count

limitation.

9. Under Section 61 of IBC, the Appeal has to be filed within 30 days. This

Tribunal may allow an Appeal to be filed after the expiry of said Period of 30 days

if it is satisfied that there was sufficient cause for not filing the Appeal in time

but such period shall not exceed 15 days. Thus the Period of Appeal is 30 days

and the Delay which this Tribunal can condone is only of 15 days over and above

Page | 6 I.A. No. 2596 of 2019 In Company Appeal (AT) (Insolvency) No. 853 of 2019 the Period of Appeal. For reasons discussed above (See Paragraph 7), even if

limitation was to be counted from 07th June, 2019 as mentioned above, the

Appeal filed on 13.08.2019 must be said to be barred by limitation as it was not

filed within 30 days plus 15 days of knowledge.

The Application to condone the delay is rejected. The Appeal being time-

barred, the same is rejected.

[Justice A.I.S. Cheema] Member (Judicial)

[Justice Anant Bijay Singh] Member (Judicial)

[Kanthi Narahari] Member (Technical)

New Delhi Basant B.

Page | 7 I.A. No. 2596 of 2019 In Company Appeal (AT) (Insolvency) No. 853 of 2019