M/S. Elica Hospitality Llp vs Mr. Amit Jain [Resolution Professional ...

IN THE MATTER OF: Mileage Hospitality LLP ...Appellant Versus Amit Jain Resolution Professional of Neesa Leisure Ltd. ...Respondent Present For Appellant : Mr. Udian Sharma, Mr. Jaitegan Khurana, Ms. Vanshita Gupta, Ms. Aarzoo Aneja, Advocates For Respondent : Mr. Varun Kalra, Mr. Shahan Ulla, Advocates for RP

With Company Appeal (AT) (Ins) No. 1229 of 2022 & I.A. No. 3747 of 2022

IN THE MATTER OF: Elica Hospitality LLP ...Appellant Versus Amit Jain Resolution Professional of M/s Neesa Leisure Ltd. ...Respondent

Present For Appellant : Mr. Udian Sharma, Mr. Jaitegan Khurana, Ms. Vanshita Gupta, Advocates For Respondent : Mr. Varun Kalra, Mr. Shahan Ulla , Advocates for RP -2- ORDER

25.08.2023: Heard Mr. Udian Sharma, Ld. Counsel along with Mr.

Jaitegan Khurana, Ld. Counsel for the Appellant as well as Mr. Varun Kalra,

Ld. Counsel who has appeared on behalf of Respondent/RP.

The present appeals have been preferred against the order dated

29.06.2022 passed by National Company Law Tribunal, Ahmedabad Bench-II

(herein after referred to as NCLT) in I.A. No. 770/AHM/NCLT/2021 in CP (IB)

No. 127/AHM/NCLT/2017.

Since both the appeals have been preferred against same order, both

appeals are taken up together and are being disposed of by common order. In

both the appeals Interlocutory applications have been filed for condonation of

delay.

In Interlocutory Applications for condonation of delay a stand was taken

that 26 days delay had occurred in filing the appeal. However, Ld. Counsel for

the Appellant submits that 26 days of delay was mentioned due to the reason

that hard copy was filed belatedly. According to Ld. Counsel for the Appellant

the appeal was filed within time through e-filing. E-filing was done on

18.08.2022. Since there was contradictory stand taken in the Interlocutory

application regarding date of e-filing, by order dated 18.07.2023, a report was

called for from the Registry to specify the date of e-filing. The report by the Ld.

Registrar has been submitted in sealed cover.

Company Appeal (AT) (Ins) No. 1208 of 2022 & I.A. No. 3664 of 2022 Company Appeal (AT) (Ins) No. 1229 of 2022 & I.A. No. 3747 of 2022 -3-

We opened the report. On perusal of the report also it is evident that both the

appeals were filed through e-filing on 18.08.2022.

Ld. Counsel for the Appellant tried to persuade that it is true that in

condonation of delay petition 26 days has been typed but fact remains that

since e-filing was done on 18.08.2022, the appeal was filed on 45th day from

the date of order. According to Ld. Counsel for the Appellant the appeal was

not belated and it was filed within time.

On the Interlocutory application in respect of condonation of delay Mr.

Varun Kalra, Ld. Counsel for the Respondent No. 1 filed reply. In reply a stand

has been taken that the appeal was filed much beyond the period of 45 days

however in reply it has been indicated that if the stand on the Appellant is

accepted even then it was filed on 46th day and not within 45 days.

Ld. Counsel for the Appellant submitted that after the Judgment was

pronounced it was uploaded on 01.07.2022 and immediately on the same date

he applied for certified copy and certified copy was delivered to the Appellant

on 04.07.2022. According to Ld. Counsel for the Appellant the period

consumed in obtaining certified copy shall be excluded in terms of Section 12

of the Limitation Act. He submits that if those periods are excluded the appeal

shall be deemed to be filed within 45 days.

Company Appeal (AT) (Ins) No. 1208 of 2022 & I.A. No. 3664 of 2022 Company Appeal (AT) (Ins) No. 1229 of 2022 & I.A. No. 3747 of 2022 -4-

He further submits that immediately after the order was uploaded i.e. on

01.07.2022, he applied for the certified copy of the order and thereafter

certified copy of the order was received by the Appellant on 04.07.2022.

According to him the period consumed from applying certified copy and

obtaining certified copy shall be excluded and if it is excluded and period of

limitation is considered from the date of uploading of the order the appeal was

filed on 45th day and as such this court is competent to condone the delay. In

support of his submission regarding excluding the period of obtaining certified

copy he has placed reliance on the recent Judgment of Hon'ble Supreme Court

reported in 2023 SCC Online SC 976 in the matter of 'Sanket Kumar Agarwal

and Anr. Vs. APG Logistics Pvt. Ltd.' It was argued that if the Judgment was not

uploaded there was no reason for the Appellant to prepare an appeal in

absence of ground to assail the order. Accordingly, he submits that the appeal

was filed within time.

On the contrary, Ld. Counsel for the Respondent has emphatically

argued that it is admitted case that order impugned was pronounced on

29.06.2022 and as such if the date of pronouncement of order is excluded

limitation starts from 30.06.2022. According to him even if the period for

applying the certified copy and obtaining the certified copy is excluded then

after the pronouncement of the order i.e. 30.06.2022, 45 days was going to

expire on 17.08.2022, however, admittedly the appeal was filed through e-filing

Company Appeal (AT) (Ins) No. 1208 of 2022 & I.A. No. 3664 of 2022 Company Appeal (AT) (Ins) No. 1229 of 2022 & I.A. No. 3747 of 2022 -5-

on 18.08.2022 and as such according to him in view of settled principle that

beyond statutory period, this court is not entitled to condone the delay, the

appeal is required to be rejected on the ground of limitation itself.

Besides hearing Ld. Counsel for the parties, we have perused the

materials available on record and also perused the Judgment on which heavy

reliance has been placed by Ld. Counsel for the Appellant.

It is undisputed fact that order was pronounced by the NCLT on

29.06.2022. It has not been pleaded by the appellant that 30.06.2022 was

holiday. Accordingly, the 30.06.2022 cannot be excluded for considering the

limitation period. It is further evident from the impugned order that certified

copy was applied on 01.07.2022 and on the same day certified copy was

prepared. It has not been pleaded that 02.07.2022 was holiday which

prevented the Appellant to obtain the certified copy. On perusal of the last page

of the impugned order it is evident that certified copy was applied on

01.07.2022 and on the same date certified copy was prepared, however it was

received by the appellant on 04.07.2022. At the moment we are not at all

examining the issue whether from the date of preparation of the certified copy

and receipt of the certified copy the said period should be excluded or not, but

if we count 30.06.2022 as start of period of limitation certainly limitation

expires on 17.08.2022 and appeal was filed on 18.08.2022 i.e. one day after

the period of limitation.

Company Appeal (AT) (Ins) No. 1208 of 2022 & I.A. No. 3664 of 2022 Company Appeal (AT) (Ins) No. 1229 of 2022 & I.A. No. 3747 of 2022 -6-

Hon'ble Supreme Court in 'Sanket Kumar Agarwal and Anr. Vs. APG Logistics

Pvt. Ltd.' has also considered the issue. On perusal of the impugned order and

considering the Judgment, we think that appellant may not get any assistance

from the said Judgment. In view of the fact that the appeal has been filed after

expiry of 45 days, it is difficult for us to pass any favorable order.

Accordingly, Interlocutory applications filed in both the appeals for

condonation of delay are dismissed. Consequently, both the appeals also stand

dismissed.

[Justice Rakesh Kumar] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

sr/md

Company Appeal (AT) (Ins) No. 1208 of 2022 & I.A. No. 3664 of 2022

Company Appeal (AT) (Ins) No. 1229 of 2022 & I.A. No. 3747 of 2022