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Shri Saurav Vashist vs Metallica Industries Limited

National Company Law Appellate Tribunal19 September 2022

Ratio decidendi

The rule this decision rests on

The appeal is to be presented within 30 days of receipt of the impugned order, extendable by a further 15 days under the proviso to Section 61 of the Insolvency and Bankruptcy Code, 2016; the period runs from the date the appellant or the appellant's authorised representative received the order, and the appellant's own inadvertent or negligent misstatement of the date of receipt does not displace the statutory period.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH,NEW DELHICompany Appeal (AT) (Ins.) No. 246 of 2020&I.A. No. 652 of 2020&I.A. No. 247 of 2022IN THE MATTER OF:

Saurav Vashist ....Appellant

Vs.

Metallica Industries Ltd. & Ors. ....Respondents

Present: For Appellant:- Ms. Shagun Bhargava, Advocate.

For Respondent:- Mr. Ravinder K. Rawat, Advocate.

ORDER

19.09.2022: Heard Ms. Shagun Bhargava, Advocate appears on behalf of

the Appellant and Mr. Ravinder K. Rawat, Advocate appears on behalf of the

Respondent No. 1.

2. I.A. No. 652 of 2020 has been filed by the Appellant in CA (AT) (Ins.) No.

246 of 2020 seeking condonation of delay in filing the present Appeal. Further,

I.A. No. 247 of 2022 has been filed seeking amendment in I.A. No. 652 of 2020.

3. The Appellant has preferred this Appeal being aggrieved and dissatisfied

by the order dated 16.10.2019 passed by the Adjudicating Authority (National

Company Law Tribunal, Mumbai Bench) in CP(IB)1329/MB/2017 wherein the

Adjudicating Authority has rejected the objections of the Appellant while

approving the Resolution Plan of Respondent No. 1 - Corporate Debtor proposed

by Respondent No. 3- Resolution Applicant.

-2-

4. The Ld. Counsel for the Appellant while pressing the I.A. No. 652 of 2020

submits that the Appellant had inadvertently mentioned that he had received

the copy of the order on 14.12.2019 as he had misplaced the envelope and

presumed that the order was receive don 14.12.2019, after the Appeal was filed

on 30.01.2020, the Appellant was able to trace the envelope and upon inspecting

the "Indiapost" website, gained knowledge that Appellant actually received the

order only on 16.12.2019. The appellant had filed the Appeal after the period of

30 days, however, within the additional 15 days as prescribed under Section 61

of IBC hence it is evident that the Appellant had filed the Appeal on 30.01.2020

i.e. on the 45 days from the date of receipt of order, therefore, the Appeal is

within limitation.

5. On the other hand, the Ld. Counsel for the Respondent No. 1 in his reply

affidavit in para 2 it is stated that the Appellant wants to establish the fact that

the impugned order dated 16.10.2019 was received by him on 16.12.2019

instead of 14.12.2019, which he alleged in his application for consideration. The

limitation period to file the present Appeal commenced from the day his Counsel

received the said order and not from the day he received the Courier sent by his

Counsel. The tracking report of the consignment further confirms the fact that

the copy of the order was dispatched on 11.12.2019 therefore, the Appellant

cannot blame anybody else for his negligence and filed the present Appeal

beyond the period of 45 days.

6. After hearing the parties and gone through the record, we are of the view

that the Appellant has filed the present Appeal beyond the period of 45 days, -3-

therefore, I.A. No. 652 of 2020 and 247 of 2022 are hereby dismissed.

Accordingly, the instant Appeal hit by limitation, is also dismissed.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical)

R.N./Kam./

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