P. Purushothaman vs Union Bank Of India & Anr
- CitationCompany Appeal (AT) (Ins) No. 858 of 2019 with
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
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
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