M/S Sai Trading And Interiors vs Mr. Sundaresan Nagarajan

[Arising out of Order dated 13.12.2019 passed by the Tribunal/National Company Law Tribunal, Division Bench-I, Chennai Bench in MA/554/2019 and MA/877/2019 in CP/193/IB/2018]

IN THE MATTER OF: 1. Vipras ADZ Through its Partner Mrs. C.S. Gajalakshmi F1, Pace Park, No. 10/27, 6th Cross Street, Shenoy Nagar, Chennai-30 ...Appellant Versus

1. Mr. Sundaresan Nagarajan, IBBI/IPA-001/IP-P00418/2017- 2018/10741 Resolution Professional, M/s. P DOT G CONSTRUCTIONS PRIVATE LTD., (CIN): U45200TN2007PTC063625 "8 Square", Plot No. 26, Balasubramanian Street, Sapthagiri Nagar, Valsaravakkam, Chennai-600116. Email: rpforpdotg.chennai@3dresolutionservices. com ...Respondent No.1

2. RCC e-Construct Private Limited, Resolution Applicant, C-74, Sushant Lok, Phase 1, Gurgaon, Haryana 122002. Email: contactus@firefulcrurn.com ...Respondent No.2 Present: For Appellant : Mr. E. Om Prakash, Senior Advocate For Ms. Madhusmita Bora, Advocate.

For Respondents : Mr. Ravi Rajagopalan, Advocate for R-1/Erstwhile RP. Mr. P.H. Arvindh Pandian, Senior Advocate

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 1 of 25 For R2/ Successful Resolution Applicant For Ms. Anannya Gosh, Ms. Mrinalini Misra, and Ms. Ragha Sudha, Advocates For R2/ Successful Resolution Applicant.

With

TA No. 31 of 2021 Company Appeal (AT) (Ins.) No. 443 of 2020

[Arising out of Order dated 13.12.2019 passed by the Tribunal/National Company Law Tribunal, Division Bench-I, Chennai Bench in MA/554/2019 and MA/630/2019 in CP/193/IB/2018]

IN THE MATTER OF: B. Akhilandeswari No A3, Parkview Apartments, No 2, 4th Cross Street, Maxworthnagar, Phase-2 Kolapakkam, Chennai- 600122 ...Appellant Versus

1. Mr. Sundaresan Nagarajan, IBBI/IPA-001/IP-P00418/2017- 2018/10741 Resolution Professional, M/s. P DOT G CONSTRUCTIONS PRIVATE LTD., (CIN): U45200TN2007PTC063625 "8 Square", Plot No. 26, Balasubramanian Street, Sapthagiri Nagar, Valsaravakkam, Chennai-600116. Email: rpforpdotg.chennai@3dresolutionservices. com ...Respondent No.1

2. RCC e-Construct Private Limited, Resolution Applicant, C-74, Sushant Lok, Phase 1, Gurgaon, Haryana 122002. Email: contactus@firefulcrurn.com ...Respondent No.2

Present: For Appellant : Mr. E. Om Prakash, Senior Advocate

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 2 of 25 For Ms. Madhusmita Bora, Advocate.

For Respondents : Mr. Ravi Rajagopalan, Advocate for R-1/Erstwhile RP. Mr. P.H. Arvindh Pandian, Senior Advocate For R2/ Successful Resolution Applicant For Ms. Anannya Gosh, Ms. Mrinalini Misra, And Ms. Ragha Sudha, Advocates For R2/ Successful Resolution Applicant. 7 With

TA No. 32 of 2021 Company Appeal (AT) (Ins.) No. 444 of 2020

[Arising out of Order dated 13.12.2019 passed by the Tribunal/National Company Law Tribunal, Division Bench-I, Chennai Bench in MA/554/2019 and MA/879/2019 in CP/193/IB/2018]

IN THE MATTER OF: S. Rani Proprietor of Sri Chakra ADZ No. 8, Nageswari Amman Koil Street, Gandhi Nagar, Avadi, Chennai - 600054. ...Appellant Versus

1. Mr. Sundaresan Nagarajan, IBBI/IPA-001/IP-P00418/2017- 2018/10741 Resolution Professional, M/s. P DOT G CONSTRUCTIONS PRIVATE LTD., (CIN): U45200TN2007PTC063625 "8 Square", Plot No. 26, Balasubramanian Street, Sapthagiri Nagar, Valsaravakkam, Chennai-600116. Email: rpforpdotg.chennai@3dresolutionservices. com ...Respondent No.1

2. RCC e-Construct Private Limited, Resolution Applicant, C-74, Sushant Lok, Phase 1, Gurgaon, Haryana 122002. Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 3 of 25 Email: contactus@firefulcrurn.com ...Respondent No.2 Present: For Appellant : Mr. E. Om Prakash, Senior Advocate For Ms. Madhusmita Bora, Advocate.

For Respondents : Mr. Ravi Rajagopalan, Advocate for R-1/Erstwhile RP. Mr. P.H. Arvindh Pandian, Senior Advocate For R2/ Successful Resolution Applicant For Ms. Anannya Gosh, Ms. Mrinalini Misra, And Ms. Ragha Sudha, Advocates For R2/ Successful Resolution Applicant.

With

TA No. 33 of 2021 Company Appeal (AT) (Ins.) No. 445 of 2020

[Arising out of Order dated 13.12.2019 passed by the Tribunal/National Company Law Tribunal, Division Bench-I, Chennai Bench in MA/554/2019 and MA/874/2019 in CP/193/IB/2018]

IN THE MATTER OF: 1. Mr. R. Krishnamoorthy S/o. Raji, No. 1/47, Pudhiya Salai, Nadukuthagai, Thiruninravur, Chennai - 602024, Email: krishnanmukhil@gmail.com ...Appellant No. 1

2. Mrs. S. Priya W/o. Natarajan, No. 15/1, Venkatachala Naicken Street, Pudhupet, Anna Salai, Chennai - 600002. Email: sabarinathanrock12@gmail.com ...Appellant No. 2 Versus

1. Mr. Sundaresan Nagarajan, IBBI/IPA-001/IP-P00418/2017- 2018/10741 Resolution Professional, M/s. P DOT G CONSTRUCTIONS PRIVATE LTD., (CIN): U45200TN2007PTC063625

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 4 of 25 "8 Square", Plot No. 26, Balasubramanian Street, Sapthagiri Nagar, Valsaravakkam, Chennai-600116. Email: rpforpdotg.chennai@3dresolutionservices. ...Respondent No.1 com

2. RCC e-Construct Private Limited, Resolution Applicant, C-74, Sushant Lok, Phase 1, Gurgaon, Haryana 122002. ...Respondent No.2 Email: contactus@firefulcrurn.com

3. W.M. Mohanasundaram S/o W. B. Meikandasivam Flat No. 27, Sai Engineers Apartment, Block 1, Maduraimeenashipuram, Iyyanchery, Urapakkam, Kancheepuram District - 603210 Email : mohanasundaram@gmail.com ...Respondent No.3

4. Mr. Palaranga Sivakumar S/o Mr. Range Reddy 25.10.429, Chaithanya Puri Colony, Vedayapalem, Nellore, Vengalarao Nagar, Andhra Pradesh - 524004 Email : sivakumarpalaranga4@gmail.com ...Respondent No.4

5. T. Selvakumar 26, NCT Nagar, Near Shanthi Nagar, Chidambaram - 600001. Email : tsk1984@gmail.com ...Respondent No.5

6. N. Rajammal No. 1/81 Mariamman Koil Street, Ayankollankondan, Rajapalayam (Taluk) - 626142. ...Respondent No.6

7. Mr. R.S. Girish Babu S/o R. Satyanarayana Rep. by his POA Mr. R. Satyanarayana SRO Royapuram, Old No. 236, Govindappa Naicken Street, Near Seven Well Market, Chennai - 600001 Email : sprayakota@gmail.com

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 5 of 25 girishbaburs@yahoo.com ...Respondent No.7

Present: For Appellants : Mr. E. Om Prakash, Senior Advocate For Ms. Madhusmita Bora, Advocate.

For Respondents : Mr. Ravi Rajagopalan, Advocate for R-1/Erstwhile RP. Mr. P.H. Arvindh Pandian, Senior Advocate For R2/ Successful Resolution Applicant For Ms. Anannya Gosh, Ms. Mrinalini Misra, And Ms. Ragha Sudha, Advocates For R2/ Successful Resolution Applicant.

With

TA No. 34 of 2021 Company Appeal (AT) (Ins.) No. 454 of 2020

[Arising out of Order dated 13.12.2019 passed by the Tribunal/National Company Law Tribunal, Division Bench-I, Chennai Bench in MA/554/2019, MA/626/2019 & MA/629/2019 in CP/193/IB/2018]

IN THE MATTER OF: M/s. Sai Trading and Interiors Represented by its partner Mr. S. Baskar, No. 134, Lakshmi Apartments, Ground Floor NTR Street, Rangarajapuram, Kodambakkam, Chennai - 600024, Tamil Nadu ...Appellant

Versus

1. Mr. Sundaresan Nagarajan, IBBI/IPA-001/IP-P00418/2017- 2018/10741 Resolution Professional, M/s. P DOT G CONSTRUCTIONS PRIVATE LTD., (CIN): U45200TN2007PTC063625 "8 Square", Plot No. 26, Balasubramanian Street, Sapthagiri Nagar, Valsaravakkam, Chennai-600116.

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 6 of 25 Email: rpforpdotg.chennai@3dresolutionservices. ...Respondent No.1 com 2. RCC e-Construct Private Limited, Resolution Applicant, C-74, Sushant Lok, Phase 1, Gurgaon, Haryana 122002. ...Respondent No.2 Email: contactus@firefulcrurn.com

Present: For Appellant : Mr. E. Om Prakash, Senior Advocate For Ms. Madhusmita Bora, Advocate.

For Respondents : Mr. Ravi Rajagopalan, Advocate for R-1/Erstwhile RP. Mr. P.H. Arvindh Pandian, Senior Advocate For R2/ Successful Resolution Applicant For Ms. Anannya Gosh, Ms. Mrinalini Misra, and Ms. Ragha Sudha, Advocates For R2/ Successful Resolution Applicant.

With

TA No. 35 of 2021 Company Appeal (AT) (Ins.) No. 455 of 2020

[Arising out of Order dated 13.12.2019 passed by the Tribunal/National Company Law Tribunal, Division Bench-I, Chennai Bench in MA/554/2019 & MA/878/2019 in CP/193/IB/2018]

IN THE MATTER OF: Themes Adz. Represented by its partner Mrs. C.S. Ganjalakshmi, No. F1, 1st Floor, New No. 10, Pace Park, 6th Cross Street, Shenoy Nagar, Chennai - 600030 ...Appellant

Versus

1. Mr. Sundaresan Nagarajan, IBBI/IPA-001/IP-P00418/2017- 2018/10741 Resolution Professional,

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 7 of 25 M/s. P DOT G CONSTRUCTIONS PRIVATE LTD., (CIN): U45200TN2007PTC063625 "8 Square", Plot No. 26, Balasubramanian Street, Sapthagiri Nagar, Valsaravakkam, Chennai-600116. Email: rpforpdotg.chennai@3dresolutionservices. com ...Respondent No.1

2. RCC e-Construct Private Limited, Resolution Applicant, C-74, Sushant Lok, Phase 1, Gurgaon, Haryana 122002. Email: contactus@firefulcrurn.com ...Respondent No.2

Present: For Appellant : Mr. E. Om Prakash, Senior Advocate For Ms. Madhusmita Bora, Advocate.

For Respondents : Mr. Ravi Rajagopalan, Advocate for R-1/Erstwhile RP. Mr. P.H. Arvindh Pandian, Senior Advocate For R2/ Successful Resolution Applicant For Ms. Anannya Gosh, Ms. Mrinalini Misra, and Ms. Ragha Sudha, Advocates For R2/ Successful Resolution Applicant.

With

TA No. 36 of 2021 Company Appeal (AT) (Ins.) No. 457 of 2020

[Arising out of Order dated 13.12.2019 passed by the Tribunal/National Company Law Tribunal, Division Bench-I, Chennai Bench in MA/554/2019 & MA/170/2019 in CP/193/IB/2018]

IN THE MATTER OF: Mr. G. Balaji S/o. Mr. C.N. Govindaraj, No. 20/1, Bhajanai Koil Street, ...Appellant Redhills, Chennai - 600052 Versus

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 8 of 25 1. Mr. Sundaresan Nagarajan, IBBI/IPA-001/IP-P00418/2017- 2018/10741 Resolution Professional, M/s. P DOT G CONSTRUCTIONS PRIVATE LTD., (CIN): U45200TN2007PTC063625 "8 Square", Plot No. 26, Balasubramanian Street, Sapthagiri Nagar, Valsaravakkam, Chennai-600116. Email: rpforpdotg.chennai@3dresolutionservices. com ...Respondent No.1

2. RCC e-Construct Private Limited, Resolution Applicant, C-74, Sushant Lok, Phase 1, Gurgaon, Haryana 122002. Email: contactus@firefulcrurn.com ...Respondent No.2

3. Mr. N. Selvakumar S/o M. Natarajan No. 4A, Jayalakshmi Apartments, Suba Shree Nagar Extension, Mugalivakkam, Chennai - 600125 ...Respondent No.3

4. Mr. Paranthaman Gopikaramanan S/o Gopikramanan 509, Phase - II, RTO Road, Sathuvachari, Vellore - 632009 ...Respondent No.4

5. P. Sharan Thrishul Reddy S/o P. Sreenivasulu Reddy, 5E, Sukruthi Villa Upstairs, Green Medow Colony, 1st Street, Kilapauk Garden Kilpauk, Chennai - 600010 ...Respondent No.5

6. R.D. Muralidaran S/o Mr. M.R. Devakumar No. 4C, Chinna Mettupalayam Kaladipet, Thiruvottiyur, Chennai - 600019 ...Respondent No.6

7. Mr. R. Sujatha Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 9 of 25 D/o K. Rajavel No. 93/8, 5th Cross Street, MKB Nagar, Vysarpadi, Chennai - 600139 ...Respondent No.7

8. K. Vinayagam S/o Kannappan 9/33, Arani Rangan Street, Old Washermenpet, Chennai - 600021 ...Respondent No.8

9. O Neetha Reddy Flat No. 3C, Plot No. 47, 48, Plunni Lilly Residency, Khana Mitta (Near Hitech City), Hyderabad - 500084, Telengana ...Respondent No.9

Present: For Appellant : Mr. E. Om Prakash, Senior Advocate For Ms. Madhusmita Bora, Advocate.

For Respondents : Mr. Ravi Rajagopalan, Advocate for R-1/Erstwhile RP. Mr. P.H. Arvindh Pandian, Senior Advocate For R2/ Successful Resolution Applicant For Ms. Anannya Gosh, Ms. Mrinalini Misra, and Ms. Ragha Sudha, Advocates For R2/ Successful Resolution Applicant.

With

TA No. 37 of 2021 Company Appeal (AT) (Ins.) No. 470 of 2020

[Arising out of Order dated 13.12.2019 passed by the Tribunal/National Company Law Tribunal, Division Bench-I, Chennai Bench in MA/554/2019 and MA/ 625/ 2019 in CP/193/IB/2018]

IN THE MATTER OF: M/s Sai Enterprises Represented by its Proprietrix, Mrs. Shakila Hemachandran, No. 93B, SRP Colony Vth Peravallur, Chennai - 600082 ...Appellant Versus

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 10 of 25 1. Mr. Sundaresan Nagarajan, IBBI/IPA-001/IP-P00418/2017- 2018/10741 Resolution Professional, M/s. P DOT G CONSTRUCTIONS PRIVATE LTD., (CIN): U45200TN2007PTC063625 "8 Square", Plot No. 26, Balasubramanian Street, Sapthagiri Nagar, Valsaravakkam, Chennai-600116. Email: rpforpdotg.chennai@3dresolutionservices. com ...Respondent No.1

2. RCC e-Construct Private Limited, Resolution Applicant, C-74, Sushant Lok, Phase 1, Gurgaon, Haryana 122002. Email: contactus@firefulcrurn.com ...Respondent No.2 Present: For Appellant : Mr. E. Om Prakash, Senior Advocate For Ms. Madhusmita Bora, Advocate.

For Respondents : Mr. Ravi Rajagopalan, Advocate for R-1/Erstwhile RP. Mr. P.H. Arvindh Pandian, Senior Advocate For R2/ Successful Resolution Applicant For Ms. Anannya Gosh, Ms. Mrinalini Misra, And Ms. Ragha Sudha, Advocates For R2/ Successful Resolution Applicant.

With

TA No. 50 of 2021 Company Appeal (AT) (Ins.) No. 215 of 2020

[Arising out of Order dated 13.12.2019 passed by the Tribunal/National Company Law Tribunal, Division Bench-I, Chennai Bench in MA/554/2019 in CP/193/IB/2018]

IN THE MATTER OF: Innova Home buyers Neyveli Association

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 11 of 25 (Registered vide No. SRG/Cuddalore/24/2019) Through its Vice-President, T. Thamizhmaran, S/o. P. Thambusamy, R/o E-163, Anna Road, Block 17 Neyveli Ts, Kurinjipadi, Cuddalore, Tamil Nadu - 607801. ...Appellant Versus

1. P dot G Construction Pvt. Ltd. Having Registered Office at No. 26, 8 Square, Porur, Tamil Nadu - 600116 Through its Resolution Professional Mr. Sundaresan Nagarajan Aa 60/3, 4th Street, Anna Nagar (west), Chennai, Tamil Nadu - 600040 ...Respondent No.1

2. Mr. Sundaresan Nagarajan, Resolution Professional of Respondent No. 1 Aa 60/3, 4th Street, Anna Nagar (west), Chennai, ...Respondent No.2 Tamil Nadu - 600040

3. DMI Finance Private Limited Through its director Express Building, 3rd Floor, No. 9-10, Bahadur Shah Zafar Marg, New Delhi - 110002. ...Respondent No.3

4. RCC E-Construct Private Limited, Resolution Applicant, C-74, Sushant Lok, Phase 1, Gurgaon, Haryana 122002. Email: contactus@firefulcrurn.com ...Respondent No.4 Present: For Appellant : Ms. Shabnam Banu, Advocate Ms. Sushil Sarayu, Advocate.

For Respondents : Mr. Ayush Gupta, Advocate for R-1. Mr. Ashish Dholakia, Senior Advocate for R2. Mr. Kinshuk Chatterjee, Advocate & Amicus Advocates & Solicitor for R3 Ms. Anannya Gosh &

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 12 of 25 Mr. Dushyant Manocha , Advocates for R4.

(Virtual Mode)

NARESH SALECHA, MEMBER (TECHNICAL):

The Present `Appeals' are filed against the common 'impugned order'

dated 13.12.2019, passed in MA/ 554/ 2019, MA/ 877/ 2019, MA/ 630/

2019, MA/ 879/ 2019, MA/ 874/ 2019, MA/ 626/ 2019 & MA/ 629/ 2019,

MA/ 878/ 2019, MA/ 170/ 2019 and MA/ 625/ 2019 in CP/ 193/ IB/ 2018

by the 'Adjudicating Authority' (National Company Law Tribunal, Chennai

Bench), whereby, the 'Adjudicating Authority' had dismissed the

`Miscellaneous Applications', filed under Insolvency & Bankruptcy Code,

2016 (in short 'I & B Code, 2016')

Brief Facts:

2.

Vipras Adz CA (AT) (Ins.) No. 442 of 2020 B. Akhilandeswari CA (AT) (Ins.) No. 443 of 2020 Mrs. S. Ravi CA (AT) (Ins.) No. 444 of 2020 P. Krishnamoorthy CA (AT) (Ins.) No. 445 of 2020 Sai Trading and Interiors CA (AT) (Ins.) No. 454 of 2020 Themes Adz CA (AT) (Ins.) No. 455 of 2020 G. Balaji CA (AT) (Ins.) No. 457 of 2020 Sai Enterprises CA (AT) (Ins.) No. 470 of 2020

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 13 of 25 The aforesaid 'Appellants' as indicated above with different CA (AT)

(Ins.) Nos. are various 'Operational Creditors' of M/s P Dot G Constructions

Pvt. Ltd. & Anr. who are aggrieved by the common 'impugned order' dated

13.12.2019 and have filed different eight appeals.

Innova Homebuyer Neyveli CA (AT) (Ins.) No. 215 of 2020 Association

The aforesaid 'Appellant' as indicated above with CA (AT) (Ins.) No. 215

of 2020 is an Association of the Homebuyers under caption 'Innova

Homebuyer Neyveli Association' has also filed an appeal against the same

common 'impugned order' dated 13.12.2019.

As such, there are total nine appeals before this 'Appellate Tribunal'

against the same common 'impugned order' and hence all these nine appeals

are being taken up together in the following discussions.

3. The 'Corporate Insolvency Resolution Process', was initiated against

the 'M/s P Dot G Constructions Pvt. Ltd. & Anr.' on 13.07.2018 and based on

the recommendations of 'Committee of Creditors' , the 'Adjudicating

Authority' approved the 'Resolution Plan' of 'Successful Resolution Applicant'

viz. M/s RCC e-Construction Pvt. Ltd.

4. Aggrieved by above 'Resolution Plan' which provides insufficient

settlement of the claims of the 'Appellants', the `Appeals', have been filed.

5. Several issues have been raised by the 'Appellants' in above `Appeals',

before this 'Appellate Tribunal' which, inter-alia, include issues regarding

fairness of 'Resolution Plan' providing meagre settlement money to the

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 14 of 25 'Appellants' for examples- only 1.5% to the 'Operational Creditors' of their

claims, non-initiation of the cases by the 'Resolution Professional' for the

fraudulent, preferential, avoidance and extortionate transactions.

6. The `Appeals' also challenge the under valued `Liquidation Value', the

'Resolution Plan' amount, being lower than the `Liquidation Value',

`exorbitant interest charges', by the 'Financial Creditors' in their claims,

wrong dealing with the aspects of `Security Interest', claimed by the

'Financial Creditors', etc.

7. The 'Appellants' have submitted that the 'impugned order' was

pronounced on 13.12.2019, however certified copy was delivered to the

'Appellants' on 03.02.2020 and the appeal was filed on 02.03.2020 as such

the appeals have been filed within the limitation period.

8. The Learned Counsel for the Respondent No. 1 however have taken the

plea that the appeals cannot be entertained since these are `barred by the

limitation', as these fails to meet the requirements, as stipulated in Section

61(2) of the I & B Code, 2016.

9. Since, the initial hurdle of the limitation is required to be looked into,

this 'Appellate Tribunal', in this `Judgment', examines the same, as it goes

to the `root of the matter of `maintainability' of these `Appeals'.

10. Before proceeding further, it is therefore warranted, to look into the

specific provisions regarding the limitations as provided in I & B Code, 2016',

along with the Rule 22(2) of 'National Company Appellate Tribunal Rules

2016', further relevant and comparable rules on the subject including the

'Companies Act, 2013'.

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 15 of 25 "22. Presentation of appeal.- (1) Every appeal shall be presented in Form NCLAT-1 in triplicate by the appellant or petitioner or applicant or respondent, as the case may be, in person or by his duly authorised representative duly appointed in this behalf in the prescribed form with stipulated fee at the filing counter and non-compliance of this may constitute a valid ground to refuse to entertain the same.

(2) Every appeal shall be accompanied by a certified copy of the impugned order.

(3) All documents filed in the Appellate Tribunal shall be accompanied by an index in triplicate containing their details and the amount of fee paid thereon. (4) Sufficient number of copies of the appeal or petition or application shall also be filed for service on the opposite party as prescribed.

(5) In the pending matters, all other applications shall be presented after serving copies thereof in advance on the opposite side or his advocate or authorised representative.

(6) The processing fee prescribed by the rules, with required number of envelopes of sufficient size and notice forms as prescribed shall be filled along with memorandum of appeal."

[emphasis supplied]

"61. Appeals and Appellate Authority.--(1) Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 16 of 25 may prefer an appeal to the National Company Law Appellate Tribunal.

(2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal:

Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days.

(3) An appeal against an order approving a resolution plan under section 31 may be filed on the following grounds, namely:--

(i) the approved resolution plan is in contravention of the provisions of any law for the time being in force;

(ii) there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period;

(iii) the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board;

(iv) the insolvency resolution process costs have not been provided for repayment in priority to all other debts; or

(v) the resolution plan does not comply with any other criteria specified by the Board.

(4) An appeal against a liquidation order passed under section 33 may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order."

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 17 of 25 [emphasis supplied]

11. From above Section 61(2) of the I & B Code, 2016, that an `Appeal', is

required to be filed, within 30 days, before this 'Appellate Tribunal'.

However, as per proviso to Sub - Section (2) of Section 61 of the I & B Code,

2016 this 'Appellate Tribunal' may allow further period not exceeding 15

days, based on the `Appeal', filed before it provided sufficient cause for non

filing the `Appeal' have been submitted. This, however, does not clarify as

to 30 days period shall be counted w.r.t. which date in contrast to similar

provision made under Section 421 of the 'Companies Act, 2013' which reads

as under :

"421. Appeal from orders of Tribunal - (1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal.

(2) No appeal shall lie to the Appellate Tribunal from an order made by the Tribunal with the consent of parties.

(3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order of the Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed:

Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period.

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 18 of 25 (4) On the receipt of an appeal under sub-section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.

(5) The Appellate Tribunal shall send a copy of every order made by it to the Tribunal" and the parties to appeal."

[emphasis supplied]

The 'Companies Act, 2013' is therefore very clear where it has been specified

that 45 days period will be counted from the date on which a copy of the

order of the 'Tribunal' is made available to the `Person Aggrieved'.

12. This `Tribunal', again refers to Section 61(1) of the I & B Code, 2016

which stipulates 'notwithstanding anything to the contrary contained under

the Companies Act, 2013....' which implies that the provision of the

'Companies Act, 2013' as contained in Section 421 is not applicable to

Section 61(1) r/w Section 61(2) of the I & B Code, 2016.

13. It is well settled `principle of interpretation', that the ingredients of

a particular section will have to be read on the basis of plain and simple

language therein, ofcourse, based on harmonious construction, without

causing any volatile harm / injury to the language found therein. Further,

when the language of the section is quite `explicit', `unequivocal' and

`unambiguous', the same admits of no exception, in the considered opinion

of this 'Appellate Tribunal'.

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 19 of 25

14. This 'Appellate Tribunal' will advert to the Citations / Judgments

relevant on the `issue of limitation', being discussed, before arriving at a final

conclusion. The decision of the Hon'ble Supreme Court of India in V.

Nagarajan vs. SKS Ispat and Power Limited and Ors. (2022) 2 SCC,

reads as under:

21. `` The answer to the two issues set out in Section C of the judgement- (i) when will the clock for calculating the limitation period run for proceedings under the IBC; and (ii) is the annexation of a certified copy mandatory for an appeal to the NCLAT against an order passed under the IBC

- must be based on a harmonious interpretation of the applicable legal regime, given that the IBC is a Code in itself and has overriding effect. Sections 61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the "order is made available to the aggrieved party", in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of the IBC, the aggrieved party is expected to exercise due diligence and apply for a certified copy upon pronouncement of the order it seeks to assail, in consonance with the requirements of Rule 22(2) of the NCLAT Rules. Section 12(2) of the Limitation Act allows for an exclusion of the time requisite for obtaining a copy of the decree or order appealed against. It is not open to a person aggrieved by an order under the IBC to await the receipt of a free certified copy under Section 420(3) of the Companies Act 2013 read with Rule 50 of the NCLT and prevent limitation from running. Accepting such a construction will upset the timely framework of the IBC. The litigant has to file its appeal within thirty days, which can be extended up to a period of fifteen days, and no more,

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 20 of 25 upon showing sufficient cause. A sleight of interpretation of procedural rules cannot be used to defeat the substantive objective of a legislation that has an impact on the economic health of a nation.

22. On the second question, Rule 22(2) of the NCLAT Rules mandates the certified copy being annexed to an appeal, which continues to bind litigants under the IBC. While it is true that the tribunals, and even this Court, may choose to exempt parties from compliance with this procedural requirement in the interest of substantial justice, as re-

iterated in Rule 14 of the NCLAT Rules, the discretionary waiver does not act as an automatic exception where litigants make no efforts to pursue a timely resolution of their grievance. The appellant having failed to apply for a certified copy, rendered the appeal filed before the NCLAT as clearly barred by limitation.

23. The appellant was present before the NCLT on 31 December 2019 when interim relief was denied and the miscellaneous application was dismissed. The appellant has demonstrated no effort on his part to secure a certified copy of the said order and has relied on the date of the uploading of the order (12 March 2020) on the website. The period of limitation for filing an appeal under Section 61(1) against the order of the NCLT dated 31 December 2019, expired on 30 January 2020 in view of the thirty-day period prescribed under Section 61(2). Any scope for a condonation of delay expired on 14 February 2020, in view of the outer limit of fifteen days prescribed under the proviso to Section 61(2). The lockdown from 23 March 2020 on account of the

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 21 of 25 COVID-19 pandemic and the suo motu order of this Court has had no impact on the rights of the appellant to institute an appeal in this proceeding and the NCLAT has correctly dismissed the appeal on limitation. Accordingly, the present appeal under Section 62 of the IBC stands dismissed.''

[emphasis supplied]

15. From the ratio laid down, in the afore cited decision of the Hon'ble

Supreme Court of India in V. Nagarajan (Supra) makes it clear that the I &

B Code, 2016, has an over riding effect and section 61(1) and 61(2) of the I

& B Code, 2016, explicitly, conspicuously silent on the requirement of

limitation, being computed `from the date when the order', is made available

to the `Aggrieved Parties' in contradiction to Section 423 of the 'Companies

Act, 2013'. This Judgment, further makes it clear that the `onus' of making

attempts, to obtain the certified copy squarely lies with the 'Applicant'. This

'Appellate Tribunal' is also conscious to the fact that the proceedings under

I & B Code, 2016 are intended to be as summary proceedings, in contrast to

other Civil Courts proceedings, which are `adversarial in nature'.

16. This 'Tribunal', refers to the Judgment of this 'Appellate Tribunal' in

the matter of Exide Industries Ltd. Vs. Jitender Kumar Jain, Resolution

Professional of Morakhia Copper & Alloys Pvt. Ltd., (vide Company

Appeal (AT) (Insolvency) No. 1169 of 2022), wherein this 'Appellate Tribunal'

had also quoted para- 21 of the judgment pronounced by the Hon'ble

Supreme Court of India in V. Nagarajan vs. SKS Ispat and Power Limited

and Ors. (2022) 2 SCC (Supra) and in para-6 of the Judgment passed by

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 22 of 25 this 'Appellate Tribunal' which is being discussed herein is also relevant and

reproduced as under: -

"Para-6. In view of the law laid down by the Hon'ble Supreme Court, the limitation for filing the Appeal begins when order was pronounced. The mere fact that Appellant received free certified copy of the Impugned Order on 27th July, 2022, the period of limitation shall not stop running after passing of the order/ judgment. Our jurisdiction to condone the delay is only limited to 15 days under Section 61(2) proviso. There being delay of more than 15 days, the Delay Condonation Application cannot be allowed. Application is dismissed. Consequently, the Memo of Appeal is rejected."

[emphasis supplied]

17. It is the case of the 'Appellants' that on 03.02.2020 'Certified Copy' was

delivered and as such the period of limitation is specified in Sub-Section 2 of

Section 61 of the I & B Code, 2016 is complied with.

However, from the record made available as well as from the averments

made, it is noted that the 'impugned order' was pronounced on 13.12.2019,

and the period of 30 days as per Section 61 of the I & B Code, 2016 expired,

on 12.01.2020. Even, if 15 days which could have been extended by this

'Appellate Tribunal', the limitation period would have expired on 27.01.2020.

Taking into account, the `Judgments pronounced by the Apex Court', as well

as this 'Appellate Tribunal', this `Tribunal', without any haziness comes to a

firm conclusion that, it was for the `Aggrieved Parties', to make earnest

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 23 of 25 efforts, for obtaining the `Certified' copy and take further necessary action,

as stipulated in Section 61 of the I & B Code, 2016.

18. This 'Appellate Tribunal', quite in the fitness of things, observes that,

the `Time is the Essence of the Code', for the purpose of maximisation of the

`Value' of the `Assets', and further that the I & B, Code, 2016, is an `inbuilt

and self-contained Code', over riding other `Laws', as per Section 238 of the

Code. As a matter of fact, mere procedure formalities cannot be allowed to

cause `undue delays' and in this perspective, the `onus' lies on the

'Appellants' for being `vigilant', and take necessary action, to protect and

exercise their `legal rights', in a timely fashion.

19. It cannot be the case of the 'Appellants' that, despite being `Parties'

and in knowledge of pronouncement of the `Order', by the 'Adjudicating

Authority', they have chosen not to be pro-active in obtaining the required

documents including, 'Certified Copy of the Order', to file the `Appeal', before

this 'Appellate Tribunal'.

20. This 'Appellate Tribunal', therefore, comes to an irrefutable and

purposive conclusion that the 'Appellants', fail to meet the requirements of

limitations, as stipulated in I & B Code, 2016. Hence, these `Appeals', Viz.

TA (AT) No. 30 of 2021 (Comp. App (AT) (CH) (INS) No. 442 of 2020) , TA (AT)

No. 31 of 2021 (Comp. App (AT) (CH) (INS) No. 443 of 2020), TA (AT) No. 32

of 2021 (Comp. App (AT) (CH) (INS) No. 444 of 2020), TA (AT) No. 33 of 2021

(Comp. App (AT) (CH) (INS) No. 445 of 2020), TA (AT) No. 34 of 2021 (Comp.

App (AT) (CH) (INS) No. 454 of 2020), TA (AT) No. 35 of 2021 (Comp. App (AT)

(CH) (INS) No. 455 of 2020), TA (AT) No. 36 of 2021 (Comp. App (AT) (CH)

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 24 of 25 (INS) No. 457 of 2020) and TA (AT) No. 37 of 2021 (Comp. App (AT) (CH) (INS)

No. 470 of 2020) are dismissed on the `point of Limitation'. No costs. The

connected pending `Interlocutory Applications', if any, are Closed. At this

juncture, this `Tribunal', makes it quite clear that, it has not traversed into

the merits of the matter in these eight `Appeals'.

TA (AT) No. 50 of 2021 (Company Appeal (AT) (INS) No. 215 of 2020):

21. In so far as the TA (AT) No. 50 of 2021 (Comp. App (AT) (INS) No. 215

of 2020 is concerned, the IA 576 of 2020 (Condone Delay Application), filed

by the `Applicant / Appellant', was allowed by this `Tribunal', as early as on

12.08.2021. Hence, the main `Company Appeal (AT) (INS) No. 215 of 2020,

will be dealt with separately for `deliverance of Judgment', in due course.

[Justice M. Venugopal] Member (Judicial)

[Naresh Salecha] Member (Technical) 06/12/2022

Simran

Company Appeal (AT) (CH) (Ins.) No.442, 443, 444, 445, 454, 455,457, 470 & 215 of 2020 25 of 25