Kuber Enterprises vs Gammon India Ltd
- CitationCompany Appeal (AT) (Insolvency) No. 768 of 2019
Ratio decidendi
The rule this decision rests on
The Appellate Tribunal cannot condone a delay beyond the period permitted by the proviso to sub-section (2) of Section 61 of the Insolvency and Bankruptcy Code, 2016; where the appeal is filed beyond the statutory period, extended by no more than fifteen days, the Tribunal has no power to entertain it on the ground of delay. An order dismissing an appeal as time-barred does not preclude the appellant from initiating fresh proceedings: the appellant may issue a fresh demand notice under Section 8 and, on default, file a fresh application under Section 9, which is not affected by the orders of the Adjudicating Authority or of the Tribunal.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Gammon India Ltd. ...Respondent
Present: For Appellant : Mr. Gaurav Mitra, Mr. Vaibhav Mishra, Ms. V. Arora and Mr. Aditya, Advocates
ORDER
30.07.2019 Learned counsel for the Appellant submits that in 'Terms of
the Agreement', in case of failure, it was agreed that the application u/s 9 shall
stand revived. It is alleged that the Respondent (Corporate Debtor) failed to
comply with the 'Terms of Agreement' and in terms of the said agreement, the
application under Section 9 of the 'I&B Code' should have been revived.
Learned counsel for the Appellant submits that though the impugned
order was passed on 1st February, 2019; the 'free certified copy' of the same was
prepared on 30th April, 2019 and it was received sometime in the beginning of
May, 2019. Even if it is accepted, the appeal should have been filed in the 1st
week of June. Learned counsel for the Appellant submits that there was summer
vacation in the month of June in this Appellate Tribunal. Though even if we
accept this submission, the appeal should have been preferred by the Appellant
on the re-opening of the Appellate Tribunal i.e. on 1st July, 2019 but it has been
filed on 22nd July, 2019, that is much beyond the delay of 15 days. Therefore,
in view of Proviso to sub-section (2) of Section 61 of the 'I&B Code', this Appellate -2-
Tribunal cannot condone the delay. However, this order will not come in the way
of the Appellant to issue fresh Demand Notice u/s 8 of the 'I&B Code' and on
default file fresh application u/s 9 of the 'I&B Code', which may be considered
uninfluenced of the orders passed by the Adjudicating Authority and by this
Appellate Tribunal.
The appeal stands disposed of with aforesaid observations.
[Justice S.J. Mukhopadhaya] Chairperson
[ Justice A.I.S. Cheema ] Member (Judicial)
[ Kanthi Narahari ] Member (Technical) /ns/gc
Company Appeal (AT) (Insolvency) No. 768 of 2019
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free