Kalyan Dombiwali Municipal ... vs Reliance Infratel Limited & Anr

Kalyan Dombivli Municipal Corporation ...Appellant

Versus

Reliance Infratel Ltd. & Anr. ...Respondents

Present: For Appellant: Mr. Rahul Chitnis and Mr. Samrat K. Shinde, Advocates. For Respondents:

ORDER

04.10.2023: I.A. No. 4442 of 2023: This is an application praying for

condonation of delay in filing the Appeal. Impugned order was passed on

03.12.2020. The Appellant who was Operational Creditor aggrieved by the

order has come up in this Appeal and filed this Appeal on 01.09.2023. Learned

counsel for the Appellant submits that Appellant was not aware of the order,

hence, he could not file the Appeal earlier. It is submitted that the Appellant

came to know about the order only on 31.07.2023, hence, thereafter the

Appeal has been filed.

2. Appeal under Section 61 has to be filed within 30 days from the date of

order. The Hon'ble Supreme Court in the matter of "V. Nagarajan vs. SKS

Ispat and Power Limited & Ors., (2022) 2 SCC 244" has noted the

difference between the language of Section 421(3) of the Companies Act which

provides for filing of appeal from the date on which copy of the order is made

available to the person aggrieved. Conscious omission of the said sentence in

Cont'd.../ -2- Section 61 of the I&B Code clearly shows that the 30 days' period prescribed

was on purpose which has already been held in V. Nagarajan's case.

3. Learned counsel for the Appellant submits that V. Nagarajan was the

case where party was present when judgment was pronounced. He submits

that Appellant was not present when the judgment was pronounced and he

was not a party to the proceedings. Learned counsel for the Appellant has

relied on judgment of this Tribunal in "Prowess International Pvt. Ltd. vs.

Action Ispat & Power Pvt. Ltd., 2018 SCC OnLine NCLAT 644", where this

Tribunal has held that Appeal has to be filed within 30 days from the date of

knowledge of the order against which Appeal is preferred. In view of the

judgment of the Hon'ble Supreme Court in V. Nagarajan, we are unable to

follow judgment of this Tribunal in Prowess International Pvt. Ltd.

4. Timelines are of great significance in the I&B Code. The filing of the

Appeal within 30 days from the date of order is for all concerned who feel

aggrieved by the order. Learned counsel for the Appellant contends that the

Appellant had no knowledge when order was passed, therefore, they could not

file appeal, hence, limitation shall only begin on 31.07.2023 when they came

to know about the order. In event, such contention is accepted, the resolution

under the Code will become indefinite and uncertain, that is why timelines

prescribed are important and for filing an appeal prescribed period is 30 days

from the date of order, hence, limitation shall commence from the date when

order is passed and shall not depend on the date when Appellant came to

know of the order.

Company Appeal (AT) (Insolvency) No.1260 of 2023 -3-

5. We are of the view that inordinate delay in filing the Appeal cannot be

condoned. Delay Condonation Application is dismissed. In result, Memo of

Appeal is rejected.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No.1260 of 2023