Shri. Mahendra C Shah vs Bank Of Baroda

IN THE MATTER OF: Mahendra C Shah, Shareholder for C Mahendra Exports Ltd. ...Appellant Versus Bank of Baroda & Anr. ...Respondents

Present: For Appellant : Mr. Ashish Pyasi, Mr. Avinash R. Khanolkar and Mr. Surekha Yadav, Advocates.

For Respondents : Mr. Ravi Raghunath and Mrs. Rathina Maravarman, Advocates for R-1.

ORDER

(Hybrid Mode)

Per: Justice Rakesh Kumar Jain (J) (Oral)

16.12.2024 : I.A. No. 8519/2024

1. This Order shall dispose of I.A. No. 8519/2024 filed by the Appellant

seeking condonation of delay of 12 days in filing the Appeal.

2. The Appeal has been filed against the Order dated 04.10.2024, by

which an Application filed under Section 7 of the Insolvency and

Bankruptcy Code, 2016 (Code), by Bank of Baroda (Respondent herein)

against M/s. C Mahendra Exports Limited (Corporate Debtor) was admitted.

The Impugned Order has basically been challenged by the Appellant on the

ground of limitation alleging that the date of default is 07.05.2014 whereas

Application under Section 7 has been filed on 05.12.2023.

3. It is needless to mention that Appellate Tribunal has noticed in the

Impugned Order that the Appellant had submitted a One Time Settlement

(OTS) dated 19.11.2020 while admitting liability/debt and the Petition has

been filed on 05.12.2023 which is within a period of limitation. We are not

going into the merits of the case because at present, this Order is only

confined to the Application for condonation of delay which has been

seriously contested by the Respondent.

4. The Appellant has made averment in Para 5 of the Application for

seeking condonation of delay, which read as under:

"5. That, there is a delay of 12 days in filing the present appeal because it took some time to collect the documents and contact the counsel in Delhi and then getting the draft notarised and sending them back to the counsel from Mumbai therefore it took some time in transit as well. Therefore, the delay caused is unintentional and therefore the same deserves to be condoned."

5. Counsel for the Appellant/Applicant has also referred to Para 4 to for

the purposes of taking a lenient view. Para 4 of the Application is also

reproduced as under:

"4. The Impugned Order is passed on 4th October, 2024 and thereafter the Appellant deliberated over the same and sought some opinion from its legal representative. Thereafter, the Appellant decided to prefer the present Appeal. However, as the Appellant is aged person it took some time to gather all the papers and proceedings to the Appellant and also there is bit time consumed by the Appellant in finding the Legal Counsel to represent before this Hon'ble Bench."

6. This Application has been vehemently opposed by the Counsel

appearing on behalf of the Bank who has submitted that the Appellant has

Comp. App. (AT) (Ins.) No. 2266 of 2024 & I.A. No. 8519 of 2024 2 of 7 not come to the Court with clean hands and has made false averments in

Para 5 for seeking condonation of delay.

7. It is submitted that if a Party makes a false averment in the

Application for condonation of delay then it is not entitled to the discretion

to be exercised for that purpose. In this regard, he has relied upon a

decision of the Hon'ble Supreme Court rendered in the case of `Pundlik

Jalam Patil' Vs. `Executive Engineer, Jalgaon Medium Project & Anr.',

reported in (2008) 17 SCC 448.

8. The contention of the Respondent is that the reason given in Para 5

for the delay is that the Appellant took some time to collect the documents

and then contacted the Counsel in Delhi and then the draft of Appeal was

notarized and the same was sent from Mumbai to Delhi for filing in which

some time has been taken in transit as well.

9. It is submitted that all the averments are false because the Appeal has

been filed through the Advocate Avinash R Khanolkar, based in Mumbai

only and there is no reference in the entire Application as to which Counsel

was contacted and engaged in Delhi by the Appellant for filing the present

Appeal, because of which, the Appeal which was drafted and notarized in

Mumbai was sent to the Counsel in Delhi and the transit took time because

of which delay of 12 days has occurred.

10. In rejoinder, Counsel for the Appellant has submitted that the period

of 12 days is within the condonable period for filing an Appeal under Section

61(2) proviso of the Code. In this regard, Counsel for the Respondent Bank

Comp. App. (AT) (Ins.) No. 2266 of 2024 & I.A. No. 8519 of 2024 3 of 7 has submitted that though this Court has the jurisdiction to condone the

period upto 15 days, in case the Appeal is filed beyond the period of 30 days

as prescribed in Section 61(1) but it can only be done only when sufficient

cause is assigned by the Applicant within such condonable period.

11. We have heard Counsel for the Parties and perused the Application

with their able assistance.

12. Section 61 of the Code deals with the Appeals and Appellate Tribunal.

Section 61 is reproduced as under:

"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."

13. Section 61 has four parts:

i. Any person aggrieved against the Order of the NCLT can file an Appeal

before this Tribunal.

ii. The period prescribed for filing an Appeal under Section 61(1) is 30

days.

iii. There is a period of 15 days for filing the Appeal in case it is not filed

within a period of 30 days but with an Application for condonation of

Comp. App. (AT) (Ins.) No. 2266 of 2024 & I.A. No. 8519 of 2024 4 of 7 delay in which the Applicant has to assign a sufficient cause to the

satisfaction of the Tribunal.

iv. The Tribunal has no jurisdiction to condone the delay beyond the

period of 15 days.

14. Thus, the sine qua non in such an application is the sufficient cause

that too to the satisfaction of the Tribunal. The reason assigned in this

Application by the Appellant for seeking condonation of delay is captured in

Para 5 of the Application.

15. We have noticed that though the Applicant has mentioned in the Para

5 of the Application that the delay has been caused because the Party is

situated in Mumbai. It had to contact Counsel in Delhi and after the Appeal

was drafted and notarized in Mumbai it was sent to Counsel in Delhi from

Mumbai and sometime was taken in the transit because of which the delay

has been caused. But the fact is otherwise because neither the Appellant

has given the name of the Counsel contacted in Delhi, nor Counsel in Delhi

has been ultimately engaged for filing the Appeal rather the Appeal has been

filed by the same Counsel Mr. Avinash R. Khanolkar who had appeared on

behalf of the Appellant before the Tribunal itself in Mumbai.

16. Though it is well settled that the Court should not adopt a pedantic

approach for condonation of delay but at the same time the Parties to the lis

cannot take the Court for a ride by making false statements in the

Application, which are also verified to be true by way of an Affidavit. In this

regard, the Hon'ble Supreme Court in the case of `Pundlik Jalam Patil'

Comp. App. (AT) (Ins.) No. 2266 of 2024 & I.A. No. 8519 of 2024 5 of 7 (Supra) has condemned such type of practice being adopted by the Parties

by observing that "in our considered opinion incorrect statement made in the

Application seeking condonation of delay itself is sufficient to reject the

Application without any further inquiry as to whether the averments made in

the Application reveal sufficient cause to condone the delay. That a Party

taking a false stand to get rid of the bar of limitation should not be

encouraged to get any premium on the falsehood on its part by condoning

delay".

17. In the cited case, the Hon'ble Supreme Court has reversed the Order

of the High Court, by which the delay was condoned and observed that "the

High Court having found that the Respondent in its Application made incorrect

submission that it had no knowledge of the award passed by the Reference

Court ought to have refused to exercise its discretion. The High Court

exercised its discretion on wrong principles. In that view of the matter, we

cannot sustain the exercise of discretion in the manner done by the High

Court."

18. Therefore, in view of the aforesaid facts and circumstances, we have

no option but to dismiss the Application because the Appellant has not

approached the Court with clean hands by making averments which are

false on its face.

The Application is thus hereby dismissed.

Comp. App. (AT) (Ins.) No. 2266 of 2024 & I.A. No. 8519 of 2024 6 of 7 Comp. App. (AT) (Ins.) No. 2266/2024

Since we have dismissed the Application for condonation of delay,

therefore, the Comp. App. (AT) (Ins.) No.2266/2024 is not found to be duly

constituted, and the same is also hereby dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Naresh Salecha] Member (Technical)

[Indevar Pandey] Member (Technical) himanshu/rr

Comp. App. (AT) (Ins.) No. 2266 of 2024 & I.A. No. 8519 of 2024 7 of 7