Shrem Residency Pvt Ltd vs Grg Estates Pvt Ltd

IN THE MATTER OF: Shrem Residency Pvt. Ltd. ...Appellant

Versus

GRG Estates Pvt. Ltd. ...Respondent

For Appellant: Mr. Pulkit Deora, Mr. Ayushmaan Bhutani and Ms. Isha Bhardwaj, Advocates For Respondents: Mr. P Nagesh, Sr. Adv. with Mr. Vishesh Issar, Mr. Akshay, Advocates

ORDER

(Per: Justice Rakesh Kumar Jain)

22.08.2022: This order shall dispose of I.A. No. 3814 of 2019 filed in CA

(AT) (Ins.) No. 1335 of 2019 for seeking condonation of delay of 15 days in

filing the appeal.

2. Shorn of unnecessary details, the present appeal bearing CA (AT) (Ins.)

No. 1335 of 2019 has been filed alongwith I.A. No. 3814 of 2019 for seeking

condonation of delay. The impugned order was passed on 23.09.2019. It is

admitted case of the Appellant that the copy of the order was received on

24.09.2019 but the appeal was filed on 24.10.2019.

3. Counsel for the Appellant has submitted that the period of 30 days

prescribed under Section 61(1) of the Insolvency and Bankruptcy Code, 2016

(in short 'Code') for the purpose of filing of appeal had expired on 24.10.2019,

therefore, the appeal was not preferred within the time prescribed, however,

the Appellant is seeking condonation of delay while invoking Section 61(2) proviso which further provides a period of 15 days to the Appellate Authority

to condone the delay in case a sufficient cause is made out by the

Applicant/Appellant.

4. It is pleaded case of the Appellant in the application as well as argued

by the Counsel for the Appellant that the appeal could not be filed within the

period of 30 days because the Appellant had received the advice that appeal

should be filed alognwith another matter which was pending adjudication and

in fact the order was passed in the said another matter on 01.10.2019 and the

copy was received on 14.10.2019 and thereafter, the present appeal was filed.

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

Appellant could have easily filed the appeal within the period of 30 days as it

had obtained the certified copy of the impugned order dated 23.09.2019 on

the next day i.e. 24.09.2019 and the period of 30 days was to expire on

24.10.2019. It is also submitted that the Appellant has made a lame excuse

for seeking condonation of delay as it not a sufficient cause to await the

decision of another matter to file the appeal together.

6. We have heard Counsel for the parties and perused the record with their

able assistance.

7. It is now well settled that the Insolvency and Bankruptcy Code, 2016 is

a complete Code in itself. Section 61 provides for the appeal before the

Appellate Authority. Section 61(1) and Section 61(2) proviso provides as

under:-

(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.

8. Section 61(1) provides that a person aggrieved against the order of the

Adjudicating Authority can prefer an appeal to the NCLAT within a period of

30 days. Section 61(2) proviso further provides that the Appellate Tribunal

may allow an appeal, filed after expiry of 30 days, if it is satisfied that there

was sufficient cause for not filing the appeal in time but such period shall

not exceed fifteen days.

9. In the present case the Appellant had the ample opportunity to file the

appeal within the period of 30 days because the impugned order passed on

23.09.2019, copy was obtained on 24.09.2019 and the period of 30 days was

expiring on 24.10.2019 but the Appellant was casual in its approach in not

filing the appeal in time and had unnecessarily wasted the precious time

provided in the statute and filed the appeal just on the last day i.e. 15th day

which is provided in proviso to Section 61(2) of the Code in order to bring the

application within the purview of consideration of this Tribunal. The reason

assigned by the Appellant in the Application do not fall within the definition

of sufficient cause and thus, looking from any angle, we do not find any merit

in the application and the same is hereby dismissed. Since the application is

hereby dismissed, the appeal is also dismissed.

10. At this juncture, we would like to observe that generally the appeals

are filed alongwith numerous documents and in volumes. The application for

condonation of delay which should have been listed on the top of the paper

book is attached somewhere in the end and as a result thereof, it skips the

notice of the Tribunal while hearing the main appeal and at times, due to

anxiety, Counsel appearing for the Appellant is focused only on the appeal

for the purpose of taking an order. Therefore, we direct the registry of this

Appellate Tribunal to mention the application for condonation of delay and

all other applications wherever it is filed alongwith the main appeal in the

beginning so that the issue of delay which is paramount for the purpose of

entertaining and constituting the appeal is decided at the threshold and

other applications are also decided accordingly.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

SC/RR