Registrar Of Companies, West Bengal vs M/S Kalyanpur Cement Limited Now Known ...

IN THE MATTER OF: Registrar of Companies, West Bengal ...Appellant

Versus Kalyanpur Cements Ltd. ...Respondent Now Known as Dalmia DSP Ltd.

Present: For Appellant: Mr. Vijay Joshi, Advocate For Respondent: Mr. Mahesh Agarwal, Mr. Shivam Shukla, Ms. Shipra Choudhry, Ms. Geetika Sharma, Ms. Mansi Taneja, Mr. Sandeep Khairwal, Advocates ORDER

(Virtual Mode) 14.07.2022: This appeal is directed against the order dated

17.07.2019 passed by the Adjudicating Authority (National Company Law

Tribunal, Kolkata Bench, Kolkata by which CP (IB) No. 168/KB/2017 in CA

(IB) No. 492/KB/2019 in Misc. A. No. 1193/KB/2018 were disposed of.

Admittedly, the present appeal has been filed on 20.12.2019 whereas

the limitation to file the appeal in terms of the Section 61(2) of the

Insolvency and Bankruptcy Code, 2016 (in short 'Code') is 30 days which

can be extended, in terms of the proviso to Section 61(2) of the Code for

another 15 days if the Tribunal is satisfied that there exist a sufficient cause

for not filing the appeal within the prescribed period of 30 days.

Counsel for Appellant has argued that the certified copy was applied

on 06.09.2019 which was made available to him on 13.12.2019. According to him the limitation is to be counted from the date of delivery of certified

copy and not from the date of passing of the impugned order.

On the other hand, Counsel for Respondent has submitted that the

Appeal ishopelesslytime barred because the application for obtaining

certified copy was itself applied much after the expiry of 45 days.

We have heard Counsel for the parties and perused the record with

their able assistance.

Section 61 of the Code provides the limitation to file the appeal to the

Appellate Authority against the order of the Adjudicating Authority. Section

61(2) provides thatthe appeal has to be filed within 30 days before the

Appellate Authority and in case the appeal is not filed within the period of

30 days, the limitation would be extended for another period of 15 days if

the Appellate Authority is satisfied that there exist a sufficient cause for not

approaching the Appellate Authority within the prescribed period of 30 days.

There is no provision cited before us that beyond the period of 45 days the

Appellate Authority can condone the delay.

Be that as it may, the facts of the present case are altogether different

because even the period of 45 days had expired on 02.09.2019 if it is to be

counted from the date of passing of the impugned order 17.07.2019

whereas the Appellant had applied for certified copy on 06.09.2019. The

Appellant was totally remiss in its act and conduct even in obtaining

certified copy despite the fact that the Appellant is the Registrar of

Companies, West Bengal, which is a statutory body. It is tried to be urged

on behalf of the Appellant that the permission to file the Appeal by the Appellant was received on 31.08.2019 from the Regional Director of

Companies, Kolkata.

It is apparent that there is a gross negligence on the part of

theRegional Director of Companies, Kolkata and Registrar of Companies,

West Bengal in not pursuing the present appeal in accordance with law and

as such a valuable remedy has been lost and the impugned order, which

according to the Appellant is illegal, has to be sustained as the appeal is not

duly constituted.

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

appeal is dismissed as time barred. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

[Mr. Naresh Salecha] Member (Technical)

Sheetal/RR