Sanjay Pandurang Kalate vs Vistra Itcl (India) Limited

Sanjay Pandurang Kalate Suspended Director of Evirant Developers Pvt. Ltd. ...Appellant

Versus

Vistra ITCL (India) Ltd. & Ors. Respondents

Present: For Appellant: Mr. Kushal Bansal and Ms. Nidhi Yadav, Advocates. For Respondents: Mr. Arvind Nayyar, Sr. Advocate with Mr. Mohd. Shahan Ulla, Mr. Akshay Joshi, Mr. Shubham Pandey, Advocates. Mr. Dhaval Deshpande and Mr. Amir Arsiwala, Advocates for R-5.

ORDER

14.09.2023: I.A. No. 4246 of 2023: This is an application filed for

condonation of delay. In the present case, order was passed by the

Adjudicating Authority on 17.05.2023 and the Appeal has been e-filed on

10.07.2023.

2. Learned counsel for the Applicant submits that order was not uploaded

and it was only uploaded on 30.05.2023. Hence, he applied for certified copy

and it was issued to him on 01.06.2023. He submits that the period during

which order was not uploaded should be excluded. In the Delay Condonation

Application, in Para 4 and 5 Applicant has given following reasons for

condonation of delay:

Cont'd.../ -2-

"4. That owning to a personal predicament of the counsel for Applicant, appeal to the Impugned Order dated 17 May 2023 has been delayed. The further, delay was caused due to logistics given the Appellant being situated in Pune. Further, as the Hon'ble NCLAT having Annual Summer Vacation from 05.06.2023 to 02.07.2023 for the National Company Law Appellate Tribunal, Principal Bench, New Delhi, the above-

mentioned ought to be excluded for computation of the period of the limitation as per the provisions of the Limitation Act, 1963. Thus, the Appeal could not be finalized and filed and the process of strategizing, drafting, vetting and filing has taken time, which caused the inadvertent delay in filing this Appeal. That the said delay neither intentional nor wilful, rather actuated by circumstances beyond the Appellant's control.

5. That owing to these unforeseen and prevailing circumstances, a delay of 10 days has been caused in filing of this instant Appeal. It is submitted that the present appeal has been filed within 15 days beyond the period of 30 days prescribed under Section 61 of the Insolvency and Bankruptcy Code, 2016."

3. When the order was delivered on 17.05.2023, the period for limitation

shall start running from the date of the order. The submission of the learned

counsel for the Appellant that the order was uploaded on 30.05.2023, hence,

period during which order was not uploaded should be excluded cannot be

accepted in view of the judgment of Hon'ble Supreme Court in "V. Nagarajan

vs. SKS Ispat and Power Limited & Ors., (2022) 2 SCC 244". The reasons

Company Appeal (AT) (Insolvency) No.1209 of 2023 -3-

given in Para 4 and 5 of the Delay Condonation Application cannot be a

ground for condonation of delay which is more than 15 days after expiry of

limitation.

4. The averment that there was annual summer vacation from 05.06.2023

to 02.07.2023, hence, said period be excluded cannot be accepted. For filing

of the appeals there was specific notification issued by the NCLAT and filing

of the appeals was not closed in any manner during the vacation period.

5. Delay in filing the Appeal is more than 15 days after expiry of the period

of limitation. Our jurisdiction to condone the delay is only 15 days under

Section 61(2) proviso, hence, we are unable to condone the delay in filing the

Appeal. Delay Condonation Application is rejected. In result, Memo of Appeal

is also rejected.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No.1209 of 2023