Miss Lucy
← All judgments

P. Purushothaman vs Union Bank Of India & Anr

National Company Law Appellate Tribunal27 September 2019

Ratio decidendi

The rule this decision rests on

The appeal under Section 61(2) of the Insolvency and Bankruptcy Code, 2016 is time barred where it is filed beyond the thirty-day period, and the Appellate Tribunal has power to condone delay only up to a further fifteen days beyond that period; a delay exceeding that limit cannot be condoned, and the application for condonation must be rejected. A party who was represented by counsel, including a senior counsel, at the time an order was pronounced cannot plead want of knowledge of that order so as to extend the limitation period; a bare assertion of ill health, unaccompanied by particulars of when knowledge was actually acquired or a calculation of the delay, does not justify condonation. An Adjudicating Authority, having admitted an application under Section 7 of the Code and having that admission order maintained up to the Supreme Court, cannot reconsider and set aside its own admission order on a subsequent review or application under Section 60(5).

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

Judgment

As delivered

1NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Company Appeal (AT) (Ins) No. 858 of 2019 with I.A. No. 2621 of 2019 & I.A. No. 2767 of 2019 IN THE MATTER OF: P. Purushothaman ...Appellant

Versus

Union Bank of India & Anr. ...Respondents Present:

For Appellant: Mr. Vibhu, Mr. Karuppaiah Meyyappan and Ms. Kanika, Advocates

For Respondents: Mr. Avrojyoti Chatterjee, Mr. Rajiv S. Roy, Mr. Abhijit Roy and Ms. Jayasree Saha, Advocates for R-3. Ms. Aanchal Kapoor, Advocate for R-2.

ORDER

27.09.2019 : Respondent No.1 - Union Bank of India filed Application

under Section 7 of Insolvency and Bankruptcy Code, 2016 (IBC - in short)

on 8th February, 2018 before the Adjudicating Authority (National Company

Law Tribunal, Chennai Bench) against EMPEE Distilleries Limited -

Corporate Debtor (Respondent No.2). The Application was admitted by

Adjudicating Authority on 1st November, 2018 against which the

shareholders of the Corporate Debtor filed Appeal to this Tribunal having

Company Appeal (AT) (Insolvency) No. 690 of 2018 by 'Sheena Adarsh'; and

Company Appeal (AT) (Ins) 742 of 2018 filed by 'Sheeju Purushothaman'.

The same were disposed by this Tribunal vide Order dated 29.03.2019 and

order admitting Section 7 application was maintained. The shareholders 2

filed Review Application No.7/2019 and 8/2019 on 9th April, 2019

challenging the Order dated 29th March, 2019 which were dismissed on 15th

April, 2019 by this Tribunal. It is stated that after such Order dated 15 th

April, 2019, the Civil Appeal came to be filed to the Hon'ble Supreme Court

of India having number - CA 4632 - 4635 of 2019 by that shareholders

which was dismissed on 10th May, 2019. It is stated that point of limitation

was kept open in case further proceedings were taken. The Appellant claims

that thereafter, he filed MA 496/2019 before the Adjudicating Authority

under Section 60(5) of IBC asking the Adjudicating Authority to reconsider

the Order dated 01.11.2018 admitting the Application under Section 7 of

IBC.

The Appellant -'P. Purushothaman', Director of the Corporate Debtor has

filed this appeal against rejection of his request for review filed before

Adjudicating Authority, National Company Law Tribunal division bench,

Chennai vide Impugned orders passed on 04.06.2019. The review application

was filed to set aside the admission order dated 01.11.2018 whereby Section 7

application filed by 'Union Bank of India' had been admitted.

Learned Counsel for the Appellant has filed I.A No. 2621 of 2019 for

condonation of delay. The appellant claims to be a senior citizen and that he

had several health issues and claimed that he did not have knowledge of the

impugned order. Learned counsel for the Appellant submits that considering

the age of the Appellant, the delay may be condoned. The Learned Counsel for 3

the Respondent - 'Union Bank of India' however, submits that the appellant

was well aware of the proceedings and in the matter earlier admission order

was challenged at the instance of other shareholders which was maintained till

the Hon'ble Supreme Court in Civil Appeal Nos. 4632-4635/2019 and

subsequently, the Adjudicating Authority was moved by way of seeking the

review of admission orders and the impugned order dated 04.06.2019 which

was actually pronounced on 27.05.2019 was passed. Counsel states that the

Senior Advocate and another advocate for the appellant were present when the

order was pronounced by the Adjudicating Authority and thus the Appellant

cannot claim lack of knowledge.

Going through the material on the record and considering the delay as

stated in the condonation application, we find that the I.A. No. 2621 of 2019

does not even state as to on what date, or around what time the Appellant

came to know about the impugned order. It is merely stated in the application

that at the time of pronouncement of the impugned order dated 04.06.2019 the

Appellant took ill and was in no condition to move. Hence was unable to seek

advice from the advocate it is claimed. The Appellant in condonation of delay

application in the para Pg. 4 did not even calculate as to how many days are of

delay.

The Appellant claimed in another application for condonation of delay in

I.A. No. 2767 of 2019 that on 07.08.2019 the Appellant for the first time

became aware of the impugned order through one of the shareholder. We

however find that the appellant was represented by the Senior Counsel and 4

one more advocate when the impugned order was pronounced but it is stated

that he was on complete bed rest and was not aware of the impugned order.

After one round of litigation upto the Hon'ble Supreme Court, this Appellant

has stepped forward and moved before Adjudicating Authority. Now with delay

this appeal is moved. The appeal filed on 21.08.2019 against the order

pronounced on 27.05.2019 (delivered on 04.06.2019) is clearly time barred

considering sub section (2) of Section 61 of the I&B Code.

When Appellant was represented by Advocates present when impugned

order was passed we are not ready to accept his plea of want of knowledge.

Apart from the above, even on merits (in case our views become necessary at

any point of time), we find that the basic order of admission dated 01.11.2018

which was admittedly not disturbed till the Hon'ble Supreme Court was rightly

not interfered with the Adjudicating Authority as it cannot reconsider its order

after admitting Section 7 proceeding.

Learned counsel for Intervener submits that although 330 days have

passed, the Adjudicating Authority is not passing the order under Section

second 31 of I&B Code due to pendency of various proceedings brought about

at the instance of shareholders/ Directors. It is stated that no proceeding

before the Adjudicating Authority is pending, still the Adjudicating Authority is

not passing order due to pendency of this appeal. We can only say that we

expect that the Adjudicating Authority will act in accordance with law. 5

We are not inclined to entertain application for condonation of delay as

we are not empowered to condone the delay more than 15 days beyond 30 days

period of appeal. I.A. No. 2621 of 2019 and I.A. No. 2767 of 2019 are rejected

and appeal is disposed off as time barred.

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical)

sa/sk

Company Appeal (AT) (Ins) No. 858 of 2019 with I.A. No. 2621 of 2019 & I.A. No. 2767 of 2019

This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.

Research this judgment with Miss Lucy

Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.

Try Miss Lucy free