K Venugopalan Nair vs Rita Venugopal & Anr

K. Venugopalan Nair Ex-Managing Director, Dewa Projects Pvt. Ltd. ....Appellant Vs. Rita Venugopal & Anr. ...Respondents

Present:

Appellant: Mr. S. Nanda Kumar and Ms. Deepika Nanda Kumar, Advocates. Respondents: Mr. Raghenth Basant and Mr. Navneet Nair, Advocates for R2. Mr. Santosh Mathew and Mr. Vijay V Paul, Advocates for R1.

ORDER

(Through Virtual Mode)

07.12.2020: Heard Mr. S. Nanda Kumar, Advocate representing the

Appellant who happens to be the Ex-Managing Director of the Corporate Debtor-

'Dewa Projects Pvt. Ltd.' assailing the impugned order dated 13th September,

2019 passed by the Adjudicating Authority (National Company Law Tribunal),

Kochi Bench, Kochi admitting the application of Financial Creditors- Ms. Rita

Venugopal and Dr. K.S. Venugopal with consequential orders of appointment of

'Interim Resolution Professional' and slapping of 'Moratorium' on the assets of

the 'Corporate Debtor'.

Contd/-.............

-2-

2. The instant appeal has been filed on 26th November, 2020. We take note

of the fact that the lockdown in the wake of outbreak of COVID-19 Pandemic was

imposed on 23rd March, 2020 whereafter in suo moto jurisdiction this Appellate

Tribunal suspended limitation which continues till date. However, reckoned from

the date of impugned order i.e. 13th September, 2019, the prescribed period of

limitation under Section 61(2) of the Insolvency and Bankruptcy Code, 2016

("I&B Code" for short) would expire on 14th October, 2019 and for sufficient

ground, the delay which can be condoned for 15 days, extended period of

limitation, would thus come to an end on 30th October, 2019. Computed thus,

having regard to exclusion of period post 23rd March, 2020, the appeal has been

filed with delay of more than four months even after expiry of extended period of

limitation. The provisions regarding limitation in regard to filing of appeals being

specifically laid down under Section 61(2) of the 'I&B Code', it is well settled that

resort cannot be had to provisions of Limitation Act made applicable in terms of

Section 238A of the 'I&B Code', to situations specifically dealt with under 'I&B

Code'. We accordingly find the appeal hopelessly time barred.

3. Learned counsel for the Appellant made strenuous efforts to convince us

that no notice has been served upon the Corporate Debtor and the order was

passed without notice thereby denying opportunity of being heard and violating

the principles of natural justice.

Company Appeal (AT) (Insolvency) No. 1045 of 2020 -3-

4. On going through the impugned order, we are of the view that this

argument is without substance. Para 19 of the impugned order eloquently

speaks of the Corporate Debtor having been put to notice by the Adjudicating

Authority which was duly delivered on 25th June, 2019. Courier receipt and

acknowledgment duly filed by the Financial Creditors was taken on record. It is,

therefore, amply clear that notice was served on the Corporate Debtor. Appellant

has preferred the instant appeal as Ex-Managing Director of the Corporate

Debtor as the Corporate Debtor would not be competent to maintain an appeal

in terms of the dictum of the Hon'ble Supreme Court in "Innoventive Industries

Ltd. Vs. ICICI Bank and Ors, (Civil Appeal Nos. 8337-8338 of 2017)".

We accordingly find no ground made out for condonation of delay. I.A. No.

2825 of 2020 is disposed of.

Since the appeal is barred by limitation, the same is dismissed alongwith

all IA's.

[Justice Bansi Lal Bhat] Acting Chairperson

[Justice Anant Bijay Singh] Member (Judicial)

AR/g

Company Appeal (AT) (Insolvency) No. 1045 of 2020