Records & Medicare Systems Pvt. Ltd vs Employees Provident Fund Organization ...
- CitationCompany Appeal (AT) (Insolvency) No. 1159 of 2023
Ratio decidendi
The rule this decision rests on
The Appellate Tribunal may condone a delay in filing an appeal under Section 61(2) only where the applicant shows sufficient cause for the non-filing, and that sufficiency must be established to the satisfaction of the Tribunal; the power to condone is confined to the additional period of fifteen days beyond the thirty-day limit and cannot be extended beyond it. An explanation for delay that is unsupported by detail and is found to be implausible or inconsistent with the chronology of events does not constitute sufficient cause, and an application for condonation of delay founded on such an explanation is liable to be dismissed. Where the application for condonation of delay is dismissed, an appeal filed without the condonation being granted is not duly constituted and is itself liable to be dismissed.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Recorders and Medicare Systems Pvt. Ltd. ...Appellant
Versus
Employees Provident Fund Organisation & Ors. ...Respondents
Present: For Appellant: Mr. Dhruv Dewan, Mr. Ravilochan Daliparthi, Mr. Yajur Sharma, Mr.Prayuj Sharma, Advocates For Respondent:
ORDER
Per: Justice Rakesh Kumar Jain:
05.09.2023: I.A. No. 4035 of 2023. This Application is filed for
condonation of delay of 14 days in filing the Appeal.
2. Counsel for the Appellant/Applicant has submitted that delay has been
caused because the management of the Appellant was not aware of the
Impugned Order and after coming to know about the Impugned Order, the
Appellant was unable to mobilise its resources in time because he was in
Himachal Pradesh in the months of July and August and was unable to access
the relevant documents and engage a counsel because of severe restrictions
on movement resulting from the heavy floods in the region. It is also submitted
that the requisite documents required for filing of the Appeal were in the offices
located in Chandigarh and Ambala which consumed additional time in filing
the Appeal.
-2-
3. We have heard counsel for the Appellant/applicant and perused the
application.
4. This Appeal has been filed under Section 61 of the Insolvency and
Bankruptcy Code, 2016 (in short Code) against the Impugned Order dated
07.07.2023 passed by National Company Law Tribunal, Chandigarh Bench,
Chandigarh by which Application I.A. No. 928 of 2020 has been allowed.
Section 61, under which present Appeal has been filed deals with Appeals and
Appellate Authority. Section 61 is as follows:
"Section 61. Appeals and Appellate Authority.
(1) Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 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.
(3) An appeal against an order approving a resolution plan under section 31 may be filed on the following grounds, namely:
Company Appeal (AT) (Insolvency) No.1159/2023 -3-
(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 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."
5. Section 61(1) provides a right of appeal to a person aggrieved by an order
of the Adjudicating Authority to the NCLAT. Section 61(2) further provides a
period of 30 days for the purpose of filing an Appeal before Appellate Tribunal
under Section 61(1) of the Code. In case, the Appeal is not filed within
prescribed period of 30 days, proviso to Section 61(2) provides for a period of
15 days within which Appeal can be filed satisfying the Appellate Authority Company Appeal (AT) (Insolvency) No.1159/2023 -4-
that there was a sufficient cause for not filing the Appeal in time. However, the
period of 15 days cannot be further extended because the Appellate Tribunal
does not have the jurisdiction to consider and condone the delay beyond the
period of 15 days.
6. Since the present Appeal has not been filed within the prescribed period
of 30 days, which is a right given to an aggrieved person flowing, from Section
61(2) of the Code and rather the Appeal has been filed, invoking Section 61(2)
proviso, there has been a delay of 14 days in filing of the Appeal i.e. one day
less than the maximum period of 15 days provided for this purpose.
7. The Appellate Authority has the jurisdiction to condone the delay only if
there is a sufficient cause shown in that regard by the Applicant meaning
thereby the sufficient cause "is a sine quo non" for the purpose of seeking
condonation of delay and it should be to the satisfaction of the Appellate
Authority. The reason assigned in this Application in not approaching this
Court within the prescribed time and spending 14 days more beyond the
period of 30 days is only a concocted story given by the Appellant because of
failure to give the detail of the stay of the Appellant in Himachal Pradesh in
the months of July and August as stated because the Impugned Order was
passed on 07.07.2023 and the period of 30 days expired on 06.08.2023
whereas Appeal has been filed on 21st August, 2023. It is also not believable
that Appellant consumed so much time in retrieving the documents from his
office located in Chandigarh and Ambala for the purpose of filing of Appeal.
Thus looking from any angle, the Appellant has given a concocted story which
is totally unbelievable and as a result thereof, it is not a sufficient cause for Company Appeal (AT) (Insolvency) No.1159/2023 -5-
the purpose of seeking condonation of delay to the satisfaction of this Court,
therefore, the Application is not found to be meritorious and the same is
hereby dismissed.
Company Appeal (AT) (Insolvency) No. 1159 of 2023
1. Since, the Application has been dismissed by an order of even date,
therefore, the present Appeal is not duly constituted and the same is hereby
dismissed.
[Justice Rakesh Kumar Jain] Member (Judicial)
[Mr. Barun Mitra] Member (Technical)
[Mr. Arun Baroka] Member (Technical)
Basant/nn Company Appeal (AT) (Insolvency) No.1159/2023
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