M/S. Custodial Services (India) ... vs M/S. Metafilms (India) Ltd

M/s. Custodial Services (India) Private Limited ...Appellant

Vs.

•M/s. Metafilms (India) Ltd. ...Respondent

Present: For Appellant:- Mr. R. Subramaniam and Mr. Arnav Dash, Advocates. For Respondent:- Mr. Mohit D Ram and Mr. Rajul Shrivastav, Advocates.

ORDER

16.11.2017- This appeal has been preferred by Appellant against order

dated 13th July, 2017 passed by the Adjudicating Authority (National

Company Law Tribunal), Chennai Bench, Chennai in TCP/423/(IB)/2017,

whereby and whereunder the transferred petition under Section 433 (e) (f)

has not been treated as an application under Section 9 of the Insolvency

and Bankruptcy Code, 2016 (hereinafter referred to as "I&B Code") in view

of pendency of case under Section 11 of the Arbitration and Conciliation

Act, 1996. The Tribunal adjourned the case sine die.

2. This appeal has been preferred under Section 61 of the 'I&B Code'

with a petition for condonation of delay. Prayer has been made to condone

the delay in preferring the appeal.

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3. As per sub-section (3) of Section 61 of the 'I&B Code', the appeal

required to be filed within thirty days and this Appellate Tribunal has been

empowered to condone delay not exceeding fifteen days, if satisfied on the

ground mentioned in the petition for condonation of delay.

4. Learned counsel for the Appellant accepts that the impugned order

was passed on 13th July, 2017 in presence of counsel for the Appellant

and the appellant had knowledge of the same on the said date and that

the thirty days' period comes to 12th August, 2017. It is also accepted that

there being Saturday and Sunday intervening and 15th August, 2017 being

holiday, the matter could have been presented on 16th August, 2017. We

accept the contention that if the case would have been filed on 16th August,

2017, this Appellate Tribunal could have accepted the appeal without

delay. However, we find that there being defect the appeal was taken back

and after removal of defects if was filed on 7th September, 2017. If thirty

days' period is calculated, it comes to 12th August, 2017 and fifteen days

thereafter that if allowed, the appeal should have been filed by 27th August,

2017. However, 27th August, 2017 being holiday at best the appeal could

have been entertained if it would have been filed by 28th August. We find

that after removal of the defects the appeal was filed on 7th September,

2017.

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5. In the aforesaid circumstances, as the appeal has been filed beyond

the period of forty-five days i.e. thirty days of filing and further fifteen days'

period, this Appellate Tribunal could have allowed, we hold that this

Appellate Tribunal has no jurisdiction to condone the delay.

•6. The petition for condonation of delay is accordingly rejected. In the

result, the appeal is dismissed being barred by limitation. No cost.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk