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Mather Highlands Apartment Owners ... vs Mather Projects Pvt Ltd And Ors

National Company Law Appellate Tribunal24 January 2023Ashok Bhushan

Ratio decidendi

The rule this decision rests on

Under the Insolvency and Bankruptcy Code, the Appellate Tribunal's power to condone delay in filing an appeal against an order of the Adjudicating Authority is limited to a further period of 15 days beyond the statutory limitation; no delay beyond that period can be condoned. A party's ignorance of an adverse order, or its counsel's failure to communicate the order, does not by itself constitute sufficient cause for condoning a delay exceeding that 15-day limit, where the party itself had filed the applications and was expected to be vigilant in pursuing them.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT)(Insolvency) No. 1028 of 2022

IN THE MATTER OF: Mother Highlands Apartment Owners Association ...Appellant

Versus

Mather Projects Pvt. Ltd. & Ors. ...Respondents

Present: For Appellant : Mr. Sudhanshu Prakash, Advocate

For Respondents : Mr. Siddhartha Chowdhury, Mr. Amjith Anandhan and Mr. Rohan Kaiche, Advocates for R-1.

ORDER

24.01.2023:

I.A. No. 3307 of 2022

Heard learned Counsel for the Applicant/Appellant.

2. This application has been filed by the Applicant/Appellant praying for

condonation of delay in filing the appeal against order dated 04.05.2022 by

which I.A. No. 585/2022 and I.A. No. 2260/2021 have been rejected by the

Adjudicating Authority (NCLT, Mumbai Bench).

3. In the insolvency proceeding, Resolution Plan has been approved on

18.01.2022. The Applicant filed I.A. No. 585 for recalling the order dated

18.1.2022. Another I.A. No. 2260/2021 was filed by the Applicant for directing

the Respondent to disclose on an Affidavit, the amount received by the

Respondent from the various apartment owners of Mother Highlands

Company Appeal(AT)(Insolvency) No. 1028 of 2022 Page 1 of 3 Apartment towards maintenance deposit. Both the Applications were rejected

by the Adjudicating Authority.

4. In the application filed for condonation of delay, grounds taken that

Applicant was not aware of the order dated 04.05.2022 until 13.07.2022 when

one of the Applicant came to know that Application was rejected on

04.05.2022, an affidavit has been filed in support of the Application by Sajith

Kunimal Venugopal that his wife is a member of the Appellant Association. He

has stated in the Affidavit that he came to know that the Applications were

rejected on 04.05.2022 only on 13.07.2022 when he visited the Registry of

NCLT. E-mails dated 13.07.2022 and 14.07.2022 have also been relied which

were communications between the Counsel and Reply given by the Counsel. In

the reply given by the Counsel it was sought to be mentioned that Counsel was

present on 04.05.2022 but his presence was not recorded.

5. The submission of the Applicant/Appellant is that he became aware of

the order dated 04.05.2022 only on 13.07.2022 and hence the delay may be

condoned. Admittedly, both the Applications were filed by the

Applicant/Appellant and in the facts of the present case, Resolution Plan was

approved on 18.01.2022. The Appellant should have been vigilant and pursue

their Application before the Adjudicating Authority. The ground that they were

not communicated by the Counsel about the orders, cannot be sufficient

ground for condonation of delay which is beyond 15 days. Our jurisdiction to

condone the delay in filing the appeal is only 15 days. The order of 04.05.2022

was challenged on 04.08.2022. The appeal is filed with delay of more than 15

days, we are unable to condone the delay in filing the appeal.

Company Appeal(AT)(Insolvency) No. 1028 of 2022 Page 2 of 3

Delay condonation Application is dismissed. Consequently, the Memo of

Appeal is also rejected.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical) akc/nn

Company Appeal(AT)(Insolvency) No. 1028 of 2022 Page 3 of 3

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