Mr. Shyam Arora Insolvency Resolution ... vs C – Tel Infosystems Private Limited

IN THE MATTER OF: Shyam Arora ...Appellant Vs. C-Tel Infosystems Pvt. Ltd. ....Respondents Present: For Appellants : Sharad Tyagi, Adv For Respondent : Safal Sethi, Akshay Kumar, Adv

ORDER

Per : Justice Rakesh Kumar Jain (Oral)

04.09.2023 This appeal is directed against the order dated 27th April, 2023

passed by the 'National Company Law Tribunal, New Delhi Court -IV (for short

'The Adjudicating Authority).

2. This appeal is filed with an application bearing IA No. 3837 of 2023 seeking

condonation of delay of 13 days in filing of the appeal.

3. Counsel for the Appellant has submitted that the delay has been caused

due to illness of the Appellant because of which he could not meet the Advocate

to discuss the matter for filing the appeal.

4. It is also submitted that the delay is bona fide and not intentional,

therefore, the same may be condoned.

5. We have heard counsel for the Appellant and perused the record.

6. Section 61 the Insolvency and Bankruptcy Code, 2016 (for short 'the Code')

deals with the 'Appeal and Appellate Authority'. Section 61(1) provides for a right 2

to file an appeal before the Appellate Authority by an aggrieved person against

the order passed by the Adjudicating Authority. Section 61(2) prescribes a period

of 30 days for filing of appeal. Proviso to Section 61(2) further provided a period

of 15 days for filing the appeal by assigning a sufficient cause to the satisfaction

of the Appellate Authority for condonation of delay.

7. For quick a reference, Section 61 of the Code is reproduced as under:

"Section 61: Appeals and Appellate Authority.

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 days1 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 3

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, or sub-section (4) of section 54L, or sub-section

(4) of section 54N, may be filed on grounds of material

irregularity or fraud committed in relation to such a

liquidation order.

(5) An appeal against an order for initiation of corporate

insolvency resolution process passed under sub-section (2)

of section 54-O may be filed on grounds of material

irregularity or fraud committed in relation to such an order."

8. Besides the fact that there is a delay in filing, the Appellant has also filed

an application bearing IA No. 3839 of 2023 under Rule 11 of the NCLAT Rules,

2016 (for short 'the Rules') seeking condonation of delay of 48 days in refiling the

appeal.

9. It is needless to mention that once the appeal is returned with the defects,

the Appellant is required to re-file the same within a period of seven days. 4

10. Be that as it may, the Hon'ble Supreme Court in the case of 'National Spot

Exchange Vs. Dr. Anil Kohli, in Civil appeal No. 6187 of 2019 decided on

14.09.2021' has held that the Adjudicating Authority does not have the

jurisdiction to condone the delay beyond a period of 15 days which is provided

in proviso to Section 61(2) of the Code.

11. The reason given by the Appellant in the application is that due to illness

of the Appellant he could not meet the Advocate for the purpose of filing the

appeal. Except the averment made in para 4 of the Application, no other details

have been given in the application. The Appellant has not disclosed his illness

which took so much of time that the Appeal was not filed within time prescribed.

No details have been given as to whether the Appellant fell sick within the time

prescribed or after that.

12. Thus the reason given in para 4 of the application is a concocted story for

getting the delay condoned which does not fall within the ambit of sufficient

cause for the purpose of seeking extension of period of limitation.

13. In view of the aforesaid facts, we are satisfied that there is no sufficient

cause assigned by the Appellant for the purpose of condonation of delay in filing

of the appeal. Consequently, the application bearing IA no. 3837 of 2023 is

hereby dismissed.

5

Company Appeal (AT) (Ins) No. 1112 of 2023

14. Since the application for condonation of delay in filing has been dismissed

by us by an order of even date, therefore, the present appeal is not duly

constituted and the same is hereby dismissed as well.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Raushan/Ravi