Sandeep Kasare vs Somerset Estate Private Limited & Anr

IN THE MATTER OF: Sandeep Kasare C-4 Sadguru Krupa CHS Ltd, Garibacha Wada, Vishu Nagar Kalyan, Thane (MH) - 421202 ...Appellant

Versus

1. Somerset Estate Private Limited Through the Interim Resolution Professional Bhupati Chambers, 5th Floor, Mathew Road, Mumbai (MH) - 400004 ...Respondent No.1

2. J.C. Flowers Asset Reconstruction Private Limited 12th Floor, Compton Greaves House, Sr. Anne Basant Road, Worli Mumbai (MH) ...Respondent No.2

Present: For Appellant : Mr. Yash Agrawal and Ms. Muskan Aggarwal, Advocates

For Respondent : Mr. Rakesh Gupta, Advocate for RP.

Mr. Chitranshul A. Sinha, Ms. Pallavi, Mr. Shivam Shorewala, Ms. Rakshita Bhargava, Advs. for R-2.

ORDER

(Hybrid Mode)

[Per: Arun Baroka, Member (Technical)]

The Appellant - Sandeep Kasare preferred this Appeal under Section 61

of the Insolvency and Bankruptcy Code, 2016 ("the Code") against the Impugned Order of the National Company Law Tribunal, Mumbai Bench-IV

("Adjudicating Authority"), dated 07.03.2024 passed in CP(IB)/795/MB-

IV/2023 by which the Adjudicating Authority has ordered Corporate

Insolvency Resolution Process ('CIRP') against the Respondent No.1 -

Somerset Estate Private Limited.

2. Before proceeding further in the main Appeal, we go on to decide

Interlocutory Application No. 616/2025 (IA No. 616/2025) which is filed by

Mr. Sandeep Kasare - Appellant /Applicant, who is the Power of Attorney

holder of Ms Anupama Agarwal (Ms Anupama), the Erstwhile Director of

Somerset Estate Pvt Ltd (Corporate Debtor). This Application is filed for

condonation of delay of 280 days in refiling the present Appeal.

3. It is claimed by the Appellant that the present Appeal was filed on

06.04.2024 by the Appellant herein for and on behalf of Anupama Agarwal,

the Shareholder of the Corporate Debtor. Thereafter, the registry of this Court

has marked defects on 12.04.2024. On 10th May 2024, subsequent to filing of

the Appeal, the father in law of Ms Anupama Agarwal suddenly expired and

Ms Anupama Agarwal was mentally disturbed with the untimely death of her

father-in-law. Even though Ms Anupama Agarwal was the Shareholder of the

Company, however, the entire records and other proceedings in regards to the

Corporate Debtor were managed by the father-in-law of Ms Anupama Agarwal.

She took some time to come out of the loss suffered on account of death of

her father-in-law. Thereafter, Ms Agarwal took time to secure all the

documents which were in the custody of her father-in-law, which were not

Company Appeal (AT) (Insolvency) No. 154 of 2025 2 of 12 available with Ms Agarwal. In view of the same, the delay in re-filing the

instant Appeal has crept in, which was not intentional or deliberate. It is

claimed that, no prejudice shall be caused to the Respondents if the instant

Application is allowed. Further, this Application is being filed bonafide and in

the interest of justice. It is claimed that the Appeal was filed within limitation

i.e. on 06.04.2024, which goes to show that the Appellant was diligent to

pursue his legal remedies as prescribed in the code. Subsequently, registry

marked number of defects in the Appeal on 12.04.2024. It is pertinent to note

that, the Appellant herein is the Power of Attorney holder of Mrs. Anupama

Agarwal, the Shareholder and Erstwhile Director of the Corporate Debtor/

Respondent No.1, her father-in-law, was the Shareholder of Respondent No.1,

holding 50% shareholding and entire documents in relation to this matter

were in his custody and management. Unfortunately, Mr. Kamlesh Agarwal

who had been ill, passed away on 10.05.2024, which left Mrs. Anupama

Agarwal and the entire family grieving and unable to give instructions to the

advocates. It took substantial amount of time to locate the documents

required to re-file along with the Appeal and take necessary instructions and

the Appeal was refilled on 23.01.2025. The delay in re-filing the present

Appeal was not intentional or deliberate on behalf of the Appellant and the

delay is explainable as stated above.

4. The Appellant has relied on the judgment of this Appellate Tribunal in

Nishant Bhutada vs Tata Motors Pvt. Ltd. in Competition Appeal (AT)

No. 9 of 2024 & I.A. No. 4958, 5288 of 2024, wherein this Appellate

Company Appeal (AT) (Insolvency) No. 154 of 2025 3 of 12 Tribunal condoned the delay in re-filing of 228 days on the ground of ill-health

of the father of Appellant as well as ill-health of the father of the Counsel.

5. Reliance is also placed upon the order dated 25.01.2024 in Innovators

Cleantech Pvt. Ltd. vs Pasari Multi Projects Pvt. Ltd. IA No. 294 of 2024

in Company Appeal (AT) (Insolvency) No. 115 of 2024 wherein this

Appellate Tribunal condoned the delay in re-filing of 86 days on the ground

that the documents were misplaced and took some to search it and further

time was taken by counsel to verify the facts and relevant documents.

6. Further, reliance is placed upon order dated 03.02.2025 passed by this

Tribunal in Shreenathii Infrastructure Vs Namasthetu Infratech Pvt.

Ltd. Company Appeal (AT) (Insolvency) No. 2153 of 2024 & IA No. 7602

of 2024, wherein this Appellate Tribunal condoned the delay in refiling of

Appeal of 104 days, inter-alia on the ground being that the documents were

stored in Appellant's Company's office in Bhopal.

7. The Appellant claims that the Appeal could not be dismissed solely on

the ground of limitation and the Appeal is found to have merits. The Appellant

claims that this Tribunal had issued notice to the Respondents on the main

Company Appeal (AT) (Insolvency) No. 154 of 2025 on 04.02.2025 after being

satisfied that the Appeal warranted further consideration. But the said order

was later recalled vide order dated 16.04.2025 on the ground that the

application seeking condonation of delay in refiling had not been considered.

But this Appellate Tribunal did not find the Appeal to be devoid of merit for

this reason. Appellant places its reliance on the judgment of the Hon'ble

Company Appeal (AT) (Insolvency) No. 154 of 2025 4 of 12 Supreme Court in the matter of Manoharan vs Sivarajan & Ors. (2014) 4

SCC 163, wherein it has been held that when substantial justice and

technical consideration are pitted against each other, cause of substantial

justice deserves to be preferred for the other side cannot claim to have vested

right in injustice being done because of a non-deliberate delay and further

held that ordinarily discretion to be exercised in favour of litigating parties

unless there are manifest grounds of mala fide. Therefore, when the merits

are apparent and this Appellate Tribunal has previously shown satisfaction

on that front, it would be unjust to dismiss the Appeal solely on the ground

of delay in re-filing and liberal approach must be taken when considering the

Application for condonation of delay. Reliance is also placed on judgment of

the Hon'ble Supreme Court in the matter of Esha Bhattacharjee vs

Managing Committee of Raghunathpur Nafar Academy and Ors., (2013)

12 SCC 649 as well as "University of Delhi vs Union of India & Ors. Civil

Appeal Nos. 9488/9489 of 2019".

8. Appellant also claims that the delay of filing the Appeal and delay in

refiling the Appeal are different and this Tribunal has held that a liberal

approach should be followed while considering delay in refiling the Appeal and

it has placed reliance on five judges bench judgment of this Tribunal in V.R.

Ashok Rao & Ors. vs. TDT Copper Ltd. I.A. No. 2095 of 2022 in Company

Appeal (AT) (Ins.) No. 780 of 2022, wherein it has been held that Scheme of

Rule 26 of the NCLAT Rules 2016, does not indicate that if the defects are not

removed within seven days, the re-presentation of the Appeal after removal of

defects beyond 7 days shall be treated as fresh Appeal. That re-presentation/

Company Appeal (AT) (Insolvency) No. 154 of 2025 5 of 12 re-filing of the Appeal has no bearing on the question of computation of

limitation. That Rule 26(3) gives specific power to extend the time for

compliance, the period of 7 days cannot be said to be mandatory period and

is only directory. Further, it was also held that a party who is exercising its

right to file a statutory appeal in time has not to be shut out on some

procedural or technical defects. It also claims that it is a settled law that the

Appellant may not explain each day in delay in filing or refiling the Appeal. It

places reliance upon decision of Hon'ble High Court of Bombay in the case of

Brihan Mumbai Electric Supply and Transport through its General

Manager vs BEST Jagrut Kamgar Sanghatana through Parivartan and

Ors., 2023 SCC OnLine Bom 2530, wherein it has been held that

explanation for day-to-day delay is not necessarily to be given. Broadly the

reasons for the delay are mentioned and they cannot be disbelieved.

Submissions of the Respondent

9. Per contra the Respondent contends that as per Rule 26 (2) of National

Company Law Appellate Tribunal Rules, 2016 ("NCLAT Rules"), seven days

are prescribed for refiling of the Appeal from the date when the Registry

intimates the defects to the Appellants. In the present case, there is an

exorbitant delay of 280 days in refiling the Appeal and neither sufficient nor

reasonable cause has been shown by the Appellant that would allow for

condonation of the said delay. Appellant in IA No. 616/2025 submitted that

the Appeal was filed on 06.04.2024. Subsequently, on 12.04.2024 certain

defects were pointed out by the Registry. It is further submitted that on

10.05.2024 the father-in-law of Ms Anupama passed away and it is contended

Company Appeal (AT) (Insolvency) No. 154 of 2025 6 of 12 that the father-in-law was managing all records pertaining to the Corporate

Debtor and due to his demise, additional time was required to retrieve and

secure the relevant documents which were in his possession. However, the

Appellant has failed to offer any explanation for the delay of 27 days in refiling,

i.e., for the period between 12.04.2024, when the defects were notified on

09.05.2024. The defect sheet has not been annexed with IA No. 616/2025 to

substantiate or clarify the nature of the defects pointed out by the Registry.

Moreover, Appellant has not even explained which of the defects required the

assistance of Ms Anupama or her father-in-law, who was allegedly managing

the relevant records.

10. The Appellant refiled the Appeal along with IA No. 616/2025 on

24.01.2025 without serving copies to the Respondents and when the Appeal

was listed for the second time on 04.02.2025, this Appellate Tribunal issued

notice without condoning the delay, as IA No. 616/2025 was never placed

before this Appellate Tribunal by the Appellant. Since the Appeal had not been

served to Respondent No. 2 until 04.03.2025, Respondent No. 2 was unable

to bring IA No. 616/2025 to the attention of this Appellate Tribunal. It was

only upon service of the Appeal along with IA No. 616/2025 that Respondent

No. 2 became aware of the delay and the pending Application for condonation

of delay. As the Appellant misled this Appellate Tribunal into issuing notice

without disclosure of the delay, therefore, Respondent No. 2 filed an

application for recall of the Order dated 04.02.2025 on 01.04.2025, which

was allowed on 16.04.2025. The foregoing facts clearly establish that the

Appellant had no intention of bringing IA No. 616/2025 to the notice of this

Company Appeal (AT) (Insolvency) No. 154 of 2025 7 of 12 Appellate Tribunal and deliberately sought to proceed with the Appeal without

obtaining condonation of 280 days delay. This conduct appears to have been

adopted as the Appellant lacked any justifiable cause for the inordinate delay

of 280 days in refiling the Appeal. This Appellate Tribunal in Dhanlaxmi

Bank Limited vs Ritu Rastogi and Others (2025 SCC OnLine NCLAT 385),

Govardhan Nirman Pvt Ltd vs Vaibhav Khandelwal and Anr (2024 SCC

OnLine NCLAT 2065) and Employees Provident Fund Organisation vs HL

Buildwell Pvt Ltd (2025 SCC OnLine NCLAT 324) has noted that the delay

in refiling can only be condoned if the Appellate Tribunal is satisfied of the

existence of a reasonable and justifiable cause for not refiling in time.

However, in the present case it is evident that the Appellant has failed to

establish any sufficient or justifiable cause for the inordinate delay of 280

days in refiling the Appeal. The explanation offered that Ms Anupama, a

shareholder of the Corporate Debtor was unable to provide the relevant

documents as the records were managed by her father-in-law is vague,

unsubstantiated and lacks any evidentiary support. Such a contention is

devoid of merit and cannot be accepted as a valid ground for condonation of

delay. Therefore, in view of the foregoing the present Application is liable to

be dismissed. The Corporate Insolvency Resolution Process is a time-bound

mechanism under the IBC and an inordinate delay of 280 days without any

justifiable cause undermines the objective of expeditious resolution and

serves only as an impediment to the statutory timelines prescribed under the

Code.

Company Appeal (AT) (Insolvency) No. 154 of 2025 8 of 12

11. The captioned Appeal came for hearing before this Tribunal on

04.02.2025, and this Tribunal after considering the merit in the submissions

made issued notice on the main Appeal. However, the said order dated

04.02.2025 was later recalled by this Tribunal pursuant to I.A. No. 2148 of

2025, filed by Respondent No.2, on the ground that notice has been issued

on the Application seeking condonation of delay in re-filing (L.A. 616 of 2025).

Thereafter, the present Application seeking condonation of delay in refiling

the Appeal came up for hearing on 13.05.2025 and this Tribunal was pleased

to reserve orders on the said Application.

Conclusions

12. We have heard the Learned Counsel for both sides and also perused

material placed on record. The present Appeal was filed on 06.04.2024 by the

Appellant - Mr. Sandeep Kasare who is the Power of Attorney holder of Ms.

Anupma Agarwal (Ms. Anupma) the Erstwhile Director of Somerset Estate

Private Limited (Corporate Debtor). The registry of this Appellate Tribunal

marked the defects on 12.04.2024. As per Rule 26(2) of NCLAT Rules, 2016,

seven days are prescribed for refiling of the Appeal from the date when the

registry intimates the defects to the Appellant. The relevant provisions are as

extracted below:

"26. Endorsement and scrutiny of petition or appeal or document.-(1) The person in charge of the filing-counter shall immediately on receipt of appeal or document affix the date and stamp of the Appellate Tribunal thereon and also on the additional copies of the index and return the acknowledgement to the party and he shall also affix his initials on the stamp affixed on the first page of the copies and enter the particulars of all such documents in the register after daily filing and assign a diary number which shall be entered below the date stamp and thereafter cause it to be sent for scrutiny.

Company Appeal (AT) (Insolvency) No. 154 of 2025 9 of 12 (2) If, on scrutiny, the appeal or document is found to be defective, such document shall, after notice to the party, be returned for compliance and if there is a failure to comply within seven days from the date of return, the same shall be placed before the Registrar who may pass appropriate orders.

(3) The Registrar may for sufficient cause return the said document for rectification or amendment to the party filing the same, and for this purpose may allow to the party concerned such reasonable time as he may consider necessary or extend the time for compliance.

(4) Where the party fails to take any step for the removal of the defect within the time fixed for the same, the Registrar may, for reasons to be recorded in writing, decline to register the appeal or pleading or document."

13. We find that the Appellant in IA No. 616/2025 filed the Appeal on

06.04.2024. Subsequently, on 12.04.2024 certain defects were pointed out by

the Registry. We note that on 10.05.2024 the father-in-law of Ms Anupama

passed away and as contended since the father-in-law was managing all

records pertaining to the Corporate Debtor and due to his demise, additional

time was required to retrieve relevant documents which were in his

possession. However, we find the Appellant has failed to offer any explanation

for the delay of 27 days in refiling, i.e, for the period between 12.04.2024,

when the defects were notified on 09.05.2024. Further we don't find any defect

sheet on record with IA No. 616/2025 to substantiate or clarify the nature of

the defects pointed out by the Registry. Furthermore, Appellant has not

explained which defects required the assistance of Ms Anupama or her father-

in-law. When the Appeal was listed for the second time on 04.02.2025, this

Appellate Tribunal issued notice without condoning the delay, as IA No.

616/2025 was never placed before us by the Appellant. It appears that

Application for condonation of the delay could not be considered and was

Company Appeal (AT) (Insolvency) No. 154 of 2025 10 of 12 taken up when the Respondent raised it. Thereafter, Respondent No. 2 filed

an Application for recall of the Order dated 04.02.2025 on 01.04.2025, which

was allowed on 16.04.2025. The Appellant should have brought IA No.

616/2025 to the notice of this Appellate Tribunal and deliberately sought to

proceed with the Appeal without obtaining condonation of 280 days delay. In

the present case, the Appellant took 280 days in refiling the Appeal. Basis

the material placed on record and also oral and written submissions, the

Appellant claims that the reason for delay in refiling was due to the death of

her father-in-law of the Appellant under whose possession the documents of

the entire Appeal were there, which took time to procure in order to clear the

defects. Having gone through the submissions of both the parties, we do not

find the explanation to be sufficient and justifiable for condonation of delay

in refiling the Appeal. The Appellant has been very casual and not pursued it

for very long period and the defects remained pending. If the Appellant was

serious, he could have pursued the matter with the registry in curing the

defects and in case they were not getting cured, the appellant could have

mentioned it before this Tribunal. We find that none of this was done. The

Appellant places its reliance on various judgments. None of them are

applicable in the facts and circumstances of the case.

14. Appellant has failed to establish any sufficient or justifiable cause for

the inordinate delay of 280 days in refiling the Appeal. The explanation offered

that Ms Anupama, a shareholder of the Corporate Debtor was unable to

provide the relevant documents as the records were managed by her father-

in-law is vague, unsubstantiated and lacks any evidentiary support. Such a

Company Appeal (AT) (Insolvency) No. 154 of 2025 11 of 12 contention is devoid of merit and cannot be accepted as a valid ground for

condonation of delay. Furthermore, Corporate Insolvency Resolution Process

is a time-bound mechanism under the IBC and an inordinate delay of 280

days without any justifiable cause undermines the objective of expeditious

resolution and serves only as an impediment to the statutory timelines

prescribed under the Code.

Orders

15. In the facts and circumstances and also bases the legal position we find

that there is no sufficient cause to condone the delay in refiling for 280 days.

Insolvency Resolution is a time bound process and such laxity in pursuing

the Appeal is not understandable. Therefore, the Application for condonation

of delay is dismissed. Consequently, memo of Appeal is also dismissed.

[Justice Ashok Bhushan] Chairperson

[Arun Baroka] Member (Technical) New Delhi.

July 01, 2025.

pawan

Company Appeal (AT) (Insolvency) No. 154 of 2025 12 of 12