Mls Led Ltd vs Hq Lamps And Manufacturing

1

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Comp. App. (AT) (Ins) No. 578 of 2022 & I.A. No. 1548, 1549, 1550 of 2022 IN THE MATTER OF: MLS LED Ltd. ...Appellant Versus HQ Lamps & Manufacturing Company Pvt. Ltd. ...Respondent Present: For Appellant : Mr. Abhishek Malhotra, Ms. Subhalaxmi Sen, Advocates For Respondent : Mr. Alok Dhir, Ms. Varsha Banerjee & Mr. Kanish Khetan, Advocates. ORDER

Per: Justice Rakesh Kumar Jain:

I.A. No. 1548 of 2022: This application is filed seeking condonation of

delay of 10 days in filing the present appeal.

2. In brief, the Appeal has been filed by the Unsuccessful Applicant (MLS

LED Ltd.) whose application, bearing CP (IB) No. 219/ALD/2018, filed under

Section 9 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code')

against HQ Lamps and Manufacturing Company Pvt. Ltd. (Respondent herein)

has been dismissed by the Adjudicating Authority (National Company Law

Tribunal, Allahabad Bench, Prayagraj).

3. The Appeal has been filed under Section 61(1) of the Code. The relevant

averments made in the application seeking condonation of delay are as

under:-

"It is submitted that the Impugned judgment was made available to the Appellant/signed and uploaded on the website of NCLT

Comp. App. (AT) (Ins) No. 578 of 2022 2

Allahabad only on 14.03.2022. Further, since the matter dates back to 2017-18 and owing to the voluminous nature of the files in the matter, there were certain delays in finalising the draft of the appeal"

4. The Respondent has filed the reply to this application in which it is

averred that the appellant has wrongly mentioned the number of days as 10

days in the application because the impugned order was passed on

02.03.2022, last date for filing the appeal, in terms of Section 61(2) of the

Code, was 01.04.2022, the extended period of 15 days expired on 16.04.2022

whereas the appeal has been filed on 20.04.2022 i.e much beyond the period

of 30+15=45 days and in view of the decision of the Hon'ble Supreme Court,

rendered in the case of National Spot Exchange Limited Versus Anil Kohli,

Resolution Professional for Dunar Foods Limited, Civil Appeal No. 6187 of

2019, delay beyond the period of 15 days cannot be condoned and the appeal

is thus not maintainable.

5. It is further averred in the reply that in the application, the Appellant

has wrongly calculated the period of limitation from the date of uploading the

order on the website of NCLT on 14.03.2022 because the limitation is not to

be counted from the date of knowledge but from the date of passing of the

order as has been held by the Hon'ble Supreme Court in the case of V.

Nagarajan Vs. SKS Ispat & Power Ltd., (2022) 2 SCC 244.

6. It is further averred in the reply that the Appellant/Applicant even did

not apply for the certified copy of the impugned order, therefore, it is not

entitled to seek exclusion of the period from the date of pronouncement of the

order till the date of its uploading for the purpose of counting the limitation.

Comp. App. (AT) (Ins) No. 578 of 2022 3

7. It is also averred that as per the decision of the Supreme Court,

rendered in the case of Lingeswaran Etc. Vs. Thirunagalingam [Petition (s) for

Special Leave to Appeal (C) Nos. 2054-2055 of 2022] decided on 25.02.2023,

it is imperative to show sufficient cause for the purpose of condonation of

delay as it cannot be condoned on equity.

8. The Appellant/Applicant has filed the rejoinder in which it is admitted

that the operative portion of the impugned order was pronounced in open

court on 02.03.2022 but it is stated that copy of the full judgment was made

available on 14.03.2022 when it was uploaded on the website of the NCLT.

9. It is also averred that clerk of the counsel who appeared before the

Adjudicating Authority kept a regular watch on the NCLT website after

02.03.2022 in order to check as to whether the full judgment has been

uploaded on the website or not which was ultimately uploaded on 14.03.2022.

Besides this, it is also averred that the Appellant had simultaneously applied

for the certified copy through the local counsel on 02.03.2022 which was

made available on 16.03.2022. It was promptly dispatched to the main

counsel's office at New Delhi but by mistake it was sent to the Appellant's

main counsel's previous office address and thus the certified copy was

misplaced. It is also averred that the local counsel for the Appellant made

several inquiries from the Registry of the NCLT but the record of the certified

copy could not be traced as the office of the Tribunal was shifted.

10. In the backdrop of the aforesaid averments made in the pleadings,

Counsel for the Appellant/Applicant has argued that the period spent for

obtaining the certified copy from 02.03.2022 to 16.03.2022 if deducted, the

Comp. App. (AT) (Ins) No. 578 of 2022 4

appeal would be within the period of 15 days which may be considered by this

Tribunal for condonation of delay.

11. On the other hand, Counsel for the Respondent has submitted that the

Appellant, in its anxiety, has set up various stories for the purpose of seeking

condonation of delay but neither of it is believable because the only averment

made in the application is that the copy of the order was uploaded on the

website of the NCLT on 14.03.2022, therefore, the limitation has been counted

from the said date instead of pronouncement of the order dated 02.03.2022,

therefore, it is alleged in the application that there is a delay of 10 days but

when the reply was filed by the Respondent and it was pointed out that the

limitation has to be counted from 02.03.2022 in view of the decision of the

Hon'ble Supreme Court in the case of V. Nagarajan (Supra) i.e. the date of

pronouncement of the order and not the date of knowledge and since the

period of 45 days had expired on 16.04.2022 and the appeal has been filed

on 20.04.2022, therefore, the appeal was clearly beyond the period of 45 days

and not maintainable in view of the decision of the Hon'ble Supreme Court in

the case of National Spot Exchange Limited (Supra), the Appellant has

changed the story in the rejoinder alleging that the certified copy was in fact

applied on 02.03.2022 and obtained on 16.03.2022 but it has been

misplaced, therefore, the period spent for obtaining the certified copy has to

be excluded. It is further submitted that the Appellant has wrongly averred

that it could not obtain the record from the Tribunal because its office was

shifted. It is argued by the Respondent that office of the Tribunal was shifted

three years before the passing of the impugned order and hence, the story

propounded by the appellant does not inspire confidence.

Comp. App. (AT) (Ins) No. 578 of 2022 5

12. We have heard Counsel for the parties and perused the record with their

able assistance.

13. Admitted facts of this case are that the impugned order was passed on

02.03.2022 and in this regard, the Respondent has appended the cause list

of 02.03.2022 as Annexure R3 with the reply in which the present appeal has

been shown as 'for pronouncement of order, Sr. No. P1, CP No.

(IB)219/ALD/2018 for order'. It is admitted by the Appellant in the rejoinder

that the order was pronounced in their presence. In such circumstances, the

decision of the Hon'ble Supreme Court delivered in the case of V. Nagarajan

(Supra) would apply which says that limitation shall start running from the

date of order whereas the case set up by the Appellant in the application is

that since the impugned order was uploaded by the Tribunal on 14.03.2022,

therefore, the limitation shall be counted from the said date and thus there is

a delay of 10 days in filing the present appeal.

14. In order to overcome the difficulties being faced, the Appellant has

developed a new story in order to take the advantage of Section 12 of the

Limitation Act, 1963 as per which the period spent by the office in preparing

the certified copy has to be excluded from the total period of limitation and in

this regard, it is alleged that after the order was pronounced on 02.03.2022

the certified copy was applied which was made available on 16.03.2022 but it

was mistakenly sent to the previous office address of the counsel at New Delhi

and was misplaced. The Appellant has not applied for the certified copy again

for the purpose of placing it on record. The story which has now been

propounded and made a part of their rejoinder is totally unbelievable because

Comp. App. (AT) (Ins) No. 578 of 2022 6

had it been a situation as suggested, it would have been the first averment in

the application itself instead of a plea in the rejoinder.

15. Thus, in our considered opinion, story propounded in the rejoinder is a

made-up story at the instance of the Appellant which cannot be believed and

as it has been held in the case of Lingeswaran Etc. (Supra) the limitation is to

be condoned on a sufficient cause and not on equity, the Appellant cannot

take any advantage of alleging that the Court should apply soft hand for the

purpose of considering the application for condonation of delay.

16. Thus, in view of the aforesaid discussion, we hardly find any merit in

the present application, much less sufficient cause, for the purpose of

condonation of delay, therefore, the application is found devoid of any merit

and the same is hereby dismissed though without any order as to costs.

Comp. App. (AT) (Ins) No. 578 of 2022 Since, the application for condonation of delay has been dismissed by

an order of even date, therefore, the appeal is found to be not duly constituted

and the same is hereby dismissed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical) New Delhi 23rd April, 2024

Sheetal

Comp. App. (AT) (Ins) No. 578 of 2022