Sita Ram vs Samir Kumar Bhattacharya Rp Of Stesalit ...
- CitationCompany Appeal(AT) (Insolvency) No. 685 of 2019
Ratio decidendi
The rule this decision rests on
The appeal under Section 61 of the Insolvency and Bankruptcy Code must be filed within 30 days of the impugned order, extendable by a further 15 days only on showing sufficient cause; the Tribunal's power of condonation is confined to that outer limit. Where the appellant claims lack of knowledge of an order that was published in newspapers and notified by letter, the appellant's knowledge may be attributed from the date of such public notice, and a claimed later date of knowledge is not accepted where the documentary record, including the timing of obtaining stamp paper and applying for a certified copy, shows it to be suspect. Delay in curing defects after presentation of an appeal, which postpones its re-filing and listing well beyond the limitation period, is conduct the Tribunal may weigh against a claim of sufficient cause, so that an appeal presented out of time and not cured promptly is dismissed as barred by limitation.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI Company Appeal(AT) (Insolvency) No. 685 of 2019 [Arising out of a judgment dated 20.07.2018 passed NCLT Kolkata Bench, Kolkata in C.P.(IB) No. 512/KB/207]
IN THE MATTER OF: In NCLT In NCLAT Sita Ram ...Appellant S/o Sh. Kanshi Ram, Resident of vill- Haripur Sandoli, P.O. Haripur sandoli Tehsil Baddi, District: Solan Vs 1. Mr. Samir Kumar Bhattacharya, Respondent No. 1 (Resolution Professional) C/o LSI Resolutions Private Limited 104, S.P. Mukherjee Road, Sagar Trade Cube, 5th Floor, Kolkata-700 026
2. Statsalit Limited Respondent Corporate (Corporate Debtor) Debtor/ Regd. Office: Shakespeare Court, Respondent No. 2 21 A, Shakespeare Sarani, 4th Floor Kolkata, West Bengal- 700 017
3. Mr. Atul Mittal (Chairman Monitoring Committee) Respondent No. 3 174, BALCO Apartements, Plot 58, IP Extension Patparganj, Delhi- 110 092
4. UCO Bank, FCC-IEP Branch 2, Respondent No. 4 India Exchange Place, Kolkata
Alternate Address: Industrial finance Branch 3; N.S. Road, Kolkata - 700 001 5. M/s River Rail JV Respondent No. 5 (Resolution Applicant) 712, 7th Floor, Shakuntala Apart, 59, Nehru Place, New Delhi -110 019 Company Appeal (AT)(Insolvency) No. 685 of 2019 Page 1 of 5 Alternate Address: C/o River Engineering Private Ltd. 912, 9th Floor Devika Tower 6, Nehru Place New Delhi DL 110 019 IN
6. Busilink Associates Applicant Operational 20, Netaji subas Road, Creditor/ Block A, First Floor Respondent No. 6 Kolkota- 700 001
....Respondents Present: For Appellant: Mr. M. Noman-Ul-Haq, Mr. Videh Vaish, Mr. Vahimudden A. Khan,Mr. Aakash Bhardwaj and Mr. Sohail Ahmed, Advocates
For Respondents: Mr. Abhinav Vashishttha, Sr. Advocate along with Ms. Priya Chauhan and Mr. Vijay Kumar, Advocate for Respondent No. 1 Mr. Divyakant Lahoti and Ms. Praveena Bist Advocates for Respondent Nos. 3 & 5
ORDER
26.02.2020 Heard learned Counsel for the Appellant and learned Counsel
for Respondent Nos. 1 & 3. A dispute has been raised by the Respondent that
the appeal is not within limitation.
2. Learned Counsel for the Appellant is submitting that the Appellant had
come to know about the Resolution Plan being accepted by the Impugned Order
dated 20.07.2018 on 31.01.2019. Counsel states that the letter dated
23.01.2019 sent by Respondent No. 3 - Chairman Monitoring Committee, was
received on 31.01.2019 and then the Appellant had applied for certified copy of
the Impugned Order and received the same. The Counsel referred to contents in
this regard in paragraph- 7.3 of the Memo of Appeal. Counsel further states that
Company Appeal (AT)(Insolvency) No. 685 of 2019 Page 2 of 5 on receiving certified copy, after coming to know on 31.01.2019, the Application
for certified copy was filed on 21.02.2019 and the copy was received on
25.02.2019 and the Appeal was presented on 01.03.2019. Thus according to the
learned Counsel the Appeal is within limitation.
3. Against this, the learned Counsel for the Respondents are pointing out
that the Resolution Plan was approved on 20.07.2018 and it is already in the
stage of implementation. It is stated that almost the whole of the plan has been
implemented. Learned Counsel for the Respondents state that Respondent No.
3 had sent letter dated 10.12.2018 along with copy of Impugned Order to the
Appellant on 21.12.2018- copy of the postal receipt is at page-49 of the Memo of
Appeal. Learned Counsel for the Respondent No. 3 submits that efforts were
made with the postal authority during pendency of the Appeal to get the tracking
report but the Respondent No. 3 has been informed that the records have been
weeded out.
4. Learned Counsel for the Appellant states that Appellant had also applied
for the records and Postal Authority has informed the Appellant that as per
manual record of Post Office, Haripur Sandoli BO that the said item of letter
dated 10.12.2018 was returned to the sender on 28.12.2018.
5. Learned Counsel for the Respondents, however, further claim that the
Appellant is suppressing the fact and has been negligent in filing the Appeal. It
is stated that apart from sending letter dated 10.12.2018, there was a Public
Notice issued in 'Dainik Tribune' in Hindi and 'The Statesman' in English
regarding the Impugned Order passed. Learned Counsel states that although the
Company Appeal (AT)(Insolvency) No. 685 of 2019 Page 3 of 5 publication stated that the employees were being informed, still it was the
information in public domain through newspapers and the Appellant cannot
claim that he did not have knowledge. Learned Counsel for the Respondent is
pointing out the Public Notice at pages 26 to 28 regarding the newspaper
publications, in Reply Affidavit filed by Respondent No. 3 (Diary No. 18816). In
addition, it is stated that Respondent No. 5, the Resolution Applicant, had also
given public information of Resolution Plan being admitted in public domain by
giving Public Notice on 08.12.2018 as can be seen at Annexure-R2, pages 27 and
28 of the Reply filed by Respondent No. 5 (Diary No. 28552). It is argued by the
learned Counsel for the Respondents that the publications were made in
newspapers having circulation in Kolkata and newspapers published from
Chandigarh which, it is claimed, have circulation in the state of Himachal
Pradesh.
6. Learned Counsel for the Appellant states that the Appellant had no
knowledge and he is an illiterate residing in village Haripur Sandoli BO, District-
Solar in Himachal Pradesh.
We find knowledge can be attributed to Appellant on 08.12.2018.
7. Apart from the newspaper publications, there is another reason why the
claim of the Appellant that he got knowledge only on 31.01.2019 is suspect as
the certified copy of the Impugned order, which has been filed, shows that the
stamp paper for the purpose of certified copy, was purchased on 22.01.2019 and
after purchasing the stamp paper on 22.01.2019, the Application was made for
a certified copy only on 21.02. 2019.
Company Appeal (AT)(Insolvency) No. 685 of 2019 Page 4 of 5
8. Considering the documents on record, we do not find that the claim of
Appellant can be accepted that he could know about the Impugned Order only
on 31.01.2019.
9. Under Section 61 of IBC, the Appeal is required to be filed within 30 days
which is the period of Appeal, and another 15 days can be condoned by this
Tribunal if there is sufficient cause. However, in this matter, the Appeal filed
against Impugned Order dated 20.07.2018, was time barred when it was
presented on 01.03.2019. The conduct of the Appellant is further clear from the
record which shows that after presenting the Appeal on 21.01.2019 when the
Appellant was asked to cure the defects, it was re-filed after 116 days on
02.07.2019 and the Registry had to put up the matter for listing under the head
"Admission with Defect" by order dated 04.07.2019.
10. Thus the appeal filed is barred by limitation.
For the above reasons, the Appeal is dismissed as time barred. No costs.
[Justice A.I.S. Cheema] Member (Judicial)
[Justice Anant Bijay Singh] Member (Judicial)
(Kanthi Narahari) Member(Technical) Akc/Md
Company Appeal (AT)(Insolvency) No. 685 of 2019 Page 5 of 5
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