Monoranjan Roy vs Bengal Polypet

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No. 162 of 2021 IN THE MATTER OF: Monoranjan Roy ...Appellant

Versus Bengal Polypet & Ors. ...Respondents

Present: For Appellant: Mr. Manas Dasgupta, Advocate For Respondent: Nandni Sen, Advocate for R2

ORDER

(Virtual Mode) 22.07.2022: I.A. 372 of 2021 has been filed for seeking condonation of

delay of 388 days in filing of the present appeal.

In brief, an application, filed by the Operational Creditor, for initiation

of Corporate Insolvency Resolution Process (CIRP) under Section 9 of the

Insolvency and Bankruptcy Code, 2016 was admitted and the Interim

Resolution Professional was appointed vide order dated 19.07.2018.

Shorn of unnecessary details, the present appeal has been preferred

by the Suspended Promoter/Director of the Corporate Debtor against the

order dated 30.09.2019 by which liquidation proceedings have been

initiated with the appointment of the Liquidator.

Counsel for the Appellant has submitted that since the

Applicant/Appellant is in judicial custody from December, 2017, therefore,

he could not file the appeal in time i.e within a period of 30 days in terms of

section 61(1) of the Code and also availing the extension of time in terms of

Section 61(2) proviso.

It is submitted that as soon as the Appellant came to know of the

impugned order, he engaged a counsel somewhere in the month of November, 2020 and filed the present Appeal on 11.12.2020. It is, thus,

submitted that the Appellant being disabled to pursue the present appeal

being in custody has prayed for condonation of delay in approaching this

Appellate Tribunal.

On the other hand, Counsel for the Respondent No. 2, at the outset,

has pointed out that though the impugned order has been challenged by the

Appellant by which liquidator has been appointed and liquidation

proceedings have been initiated yet, knowing fully well, deliberately the

Appellant has not impleaded the liquidator as a party in this case. In regard

to the condonation of delay, it is submitted that the application is totally

vague as the Appellant has not disclosed as to when he came to know about

the impugned order.

We have heard Counsel for the parties and perused the record.

Since we are dealing with the application for condonation of delay it is

worthwhile to refer to Section 61 of the Code which is reproduced as under:

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

The aforesaid provision has two parts. The limitation provided is of 30

days to prefer an appeal and in special circumstances the Appellate

Authority has been conferred the jurisdiction to condone the delay of

another 15 days in case the Applicant satisfies the Appellate Tribunal that there was a sufficient cause for not preferring the appeal within the

extended period of 15 days as well.

In the present case, the delay is of 388 days and the Appellant has

failed to mention in the application the date on which he came to know

about the impugned order dated 30.09.2019. The application is, thus,

totally vague and hence on the vague averments the delay cannot be

condoned. Moreover, the act and conduct of the Appellant is such which do

not inspire confidence in allow this application in his favour because he has

not approached the Tribunal with clean hands as he did not implead the

necessary party to the lis i.e. liquidator who had been appointed by the

Adjudicating Authority vide the impugned order.

No explanation has been given during the course of the hearing by the

Counsel for the Appellant for such a remiss on his part. Thus, in view of the

aforesaid facts and circumstances, we could not persuade ourselves to pass

any order in favour of the Appellant for the purpose of condonation of delay

and therefore, the application for seeking condonation of delay is hereby

dismissed and as a consequence thereof, the Appeal and any other

application which is filed at the instances of the Appellant is also dismissed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Kanthi Narahari] Member (Technical)

[Dr. Alok Srivastava] Member (Technical)

Sheetal/RR