Prakash Chandra Kapoor & Anr vs Edelweiss Asset Reconstruction ...

IN THE MATTER OF: Prakash Chandra Kapoor& Anr. ...Appellant

Versus Edelweiss Asset Reconstruction Company Ltd. & ...Respondents Anr.

Present: For Appellant: Ms. Meenakshi Rawat, Mr. Rajesh Chhetri and Mr. Mukund Cherkuri, Advocates For Respondent: Mr. Aditya Vashisth, Mr. Gaurav Mitra, Advocates for R1 Ms. Punthi Shah, IahraLokhandwala, Advocates for R2 ORDER

(Virtual Mode) 15.07.2022: This appeal is purported to have been filed at the instance

of the ex-promoters of Pinki Shipyard Pvt. Ltd., in order to challenge the

order dated 12.12.2019 passed by the Adjudicating Authority (National

Company Law Tribunal, Mumbai Bench) in MA 1726/2019 in C.P. (IB) -

1634/(MB)/2017 by which the liquidation proceedings were initiated.

The Appellant has filed an application bearing IA No. 889 of 2019 for

seeking condonation of delay in filing the appeal as well. Notice was issued

in the appeal as well as the application for condonation of delay.

Reply to the appeal and application for condonation of delay has been

filed on behalf of the Respondent No. 1.

Counsel for Appellant, while pressing the application filed for

condonation of delay has submitted that there is no deliberate delay on their

part in filing the appeal because the delay has been caused, firstly, the Appellants were not a party to the lis before the Adjudicating Authority and

secondly, they came to know about the order dated 12.12.2019 only on

02.01.2020 when they noticed the same on the website of the Adjudicating

Authority.

It is submitted that the certified copy of the impugned order dated

12.12.2019 was applied on 31.01.2020 and thus a delay of 29 days has

been caused in filing of the present appeal.

On the other hand, Counsel for Respondent No. 1 has vehemently

argued that the reason assigned by the Appellant does not inspire any

confidence because it has not been mentioned in the application as to when

the order of the Adjudicating Authority was uploaded and as to why the

certified copy was applied on 31.01.2020 even after noticing the order on

02.01.2020. It is further submitted that the limitation is not to be counted

from the date of knowledge of the Appellant but from the date of passing of

the order and in support of his submission, he has relied upon the decisions

of the Hon'ble Supreme Court in the case of V Nagarajan vs. SKS Ispat and

Power Limited & Anr., (2021 SCC Online SC 959) and Safire Technologies

Pvt. Ltd Versus Regional Provident Fund Commissioner & Anr. Civil Appeal

No. 2212 of 2021 decided on 29.04.2022.

We have heard Counsel for the parties on the application for

condonation of delay.

Section 61 of the Code provides appeals to the Appellate Authority

much less the NCLAT against the order of the Adjudicating Authority.

Section 61(2) provides limitation of 30 days to file the appeal. The proviso to

section 61(2) further provides that the period of limitation can be extended by the Appellate Authority for another 15 days if it is satisfied that the

Appellant had a sufficient cause for not filing the appeal within the

prescribed period. There is no other provision in the Code by which the

limitation can be extended.

It is an admitted fact that the appeal has been filed much beyond the

period of 30 plus 15 days. It is needless to mention that the period of 30

days is statutorily provided to a party who intends to file an appeal but the

period of 15 days is left at the discretion of the Appellate Authority which

has to look into the adequacy of sufficient cause before extending the period

of another 15 days. In no case the limitation can be extended beyond the

period of 45 days.

Now the question is as to whether the limitation is to be counted from

the date of passing of the order or from the date of the knowledge of the

party. In this regard, the issue is no more res-integra, in view of the

decisions of the Hon'ble Supreme Court in the case of V Nagarajan (Supra)

and Safire Technologies Pvt. Ltd (Supra). Counsel for the Appellant has

failed to cite any judgment to the contrary for the assistance of the Tribunal

to take the view different from the Judgments relied upon by Counsel for the

Respondent. Counsel for the Respondent has also pointed out, during the

course of hearing, that the promoter had been participating in all the

proceedings and was in the knowledge of the impugned order dated

12.12.2019 and wrongly ascribed his knowledge from the website of the

Adjudicating Authority on 02.01.2020.

Thus, in view of the aforesaid facts and circumstances, especially in

view of the fact that despite having the knowledge on 02.01.2020 the certified copy was applied on 31.01.2020 the Appellant has shown that they

were actually not interested in filing the appeal in time. No other argument

has been raised.

In view of the aforesaid facts and circumstances, the present

application is hereby dismissed and in consequence thereof the appeal is

also hereby dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Kanthi Narahari] Member (Technical)

[Dr. Alok Srivastava] Member (Technical)

Sheetal/RR