Srei Infrastructure Finance Limited vs Uday Narayan Mitra

IN THE MATTER OF: SREI Infrastructure Finance Ltd. ...Appellant Versus Uday Narayan Mitra Interim Resolution of ARSS Infrastructure Projects Ltd. ...Respondent

Present For Appellant : Mr. Anirban Bhattacharya, Mr. Rajeev Chowdhary, Advocates For Respondent : Ms. Apoorva Pandey, Mr. Anand Varma, Mr. Ayush Gupta, Advocates

ORDER

22.09.2023: Heard Mr. Anirban Bhattacharya, Ld. Counsel for the

Appellant and Ms. Apoorva Pandey, Ld. Counsel who has appeared on behalf of

the Respondent.

The present appeal has been preferred under Section 61 of the

Insolvency and Bankruptcy Code, 2016 (herein after referred to as 'Code')

against an order dated 20.12.2022 passed by National Company Law Tribunal,

Cuttack Bench, Cuttack (herein after referred to as Adjudicating Authority) in

I.A. (IB) No. 83/CB/2022 in CP (IB) No. 34/CB/2021. -2-

After filing, the appeal was firstly taken up on 28.02.2023. The appeal

was listed along with an Interlocutory application i.e. I.A. No. 769 of 2023

which was filed for condonation of delay. Order dated 28.02.2023 reflects as if

no submission was made on the point of condonation of delay in filing the

appeal. Thereafter, on 06.04.2023 and 04.05.2023 the appeal was taken up

but adjourned for one reason or another reason. Again on 19.07.2023 and

11.09.2023, the appeal was listed but order sheet reflects that no submission

on the point of condonation of delay was made. In filing the appeal 14 days

delay has occurred and as such an application for condonation of delay was

filed vide I.A. No. 769 of 2023. It would be better to reproduce the entire

condonation of delay application which is as follows:

1. RELIEFS SOUGHT:

In the facts and circumstances mentioned below and in the interest of justice, it is most respectfully prayed that this Hon'ble Appellate Tribunal may be pleased to:

a) To condone the delay of 14 days in filing Company Appeal against Impugned order dated 20.12.2022 passed by the National Company Law Tribunal, Cuttack Bench, Cuttack in IA (IB) No. 83/CB/2022 in C.P. (IB) No. 34/CB/2021.

And/or

b) Pass such further or other orders which this Hon'ble Appellate Tribunal deems fit and proper in the facts and circumstances of the case in the interest of justice.

Company Appeal (AT) (Ins) No. 212 of 2023 & I.A. No. 769 of 2023 -3-

2. BRIEF FACTS:

That the instant Appeal has been preferred under Section 61 of the Insolvency and Bankruptcy Code,2016 against the Impugned order dated 20.12.2022 passed by the National Company Law Tribunal, Cuttack Bench, Cuttack in LA. (IB) No 83/CB/2022 in C.P. (IB) No. 34/CB/2021. The Appellant/Applicant craves leave of this Hon'ble Appellate Tribunal to refer to the contents and averments made in the abovementioned Appeal and the same are not repeated herein for the sake of brevity.

3. BASIS ON WHICH INTERIM ORDERS PRAYED FOR:

i. The Appellant states that the order was pronounced by the Adjudicating Authority on 20.12.2022 however no copy of the order was made available to the Appellant's counsel in the last week December 2022. The Appellant regular follow up with the local Counsel at Cuttack but due to his ill health he remained unanswered. As and when the copy made available the Appellant was advised to file Company Appeal against the Impugned order. The Appellant requested the local counsel at Cuttack to obtain certified copy of the impugned order but due to his ill health he was unable to obtained the same from Registry of Adjudicating Authority, Cuttack Bench, Cuttack.

ii. Upon receipt of the uncertified copy of the Impugned order, the Appellant collected the papers from the office of its Advocate at Kolkata/Cuttack. After meeting coupled of advocates at New Delhi, the appellant finally engaged Sh. Ankit Kohli advocate who accepted the brief and agreed to represent the cause of the Appellant at a nominal cost.

iii. The Appellant states that the delay in filing the Appeal is not intentional nor willful. The appellant is praying for condonation of the delay beyond the statutory period of 30 days which has inadvertently occurred, however the appeal is being filed within the 15days period under the proviso to section 61(2) of the IBC 2016 which delay may be condoned. The appellant has a strong case in its favour and has every likelihood to succeed.

Company Appeal (AT) (Ins) No. 212 of 2023 & I.A. No. 769 of 2023 -4-

4. BALANCE OF CONVENIENCE IF ANY:

The balance of convenience is in favour of the Appellant/Applicant herein. Grave loss and irreparable loss shall be caused to the Appellant in case it is not allowed. The present application has been made bonafide and in the interest of justice and thus liable to be allowed by this Hon'ble Appellate Tribunal.

Ld. Counsel for the Appellant tried to persuade the court that the delay

in filing the appeal has occurred due to the reason which was beyond the

control of the Appellant and there were no intentional latches on the part of the

Appellant. As such he requested for condoning the delay.

The point regarding condonation of delay was asked by the court itself,

yesterday i.e. 21.09.2023, when the matter was taken up and matter was

deferred for today i.e. 22.09.2023. In the appeal Ms. Apoorva Pandey, Ld.

Counsel has appeared on behalf of the Respondent and submits that despite

the fact that the appeal was filed belatedly and condonation of delay

application was also filed, the appellant has not bothered to bring on record

certified copy of the impugned order. In reply, Ld. Counsel for the Appellant

submits that the ground which has been taken in the condonation of the delay

application has also been taken in an application filed for exemption to file

certified copy of the impugned order vide I.A. No. 768 of 2023. Accordingly, it is

submitted by Ld. Counsel for the Appellant that none bringing on record of

certified copy of the impugned order may not come in way in condoning the

delay in filing the appeal.

-5-

Besides hearing Ld. Counsel for the parties, we have perused the

materials available on record, particularly the grounds set forth in the

condonation of delay application. Normally, if an application/appeal is filed

belatedly and an Interlocutory application is filed for condonation of delay, it is

expected that the parties must explain about the reason for delay on day-to-

day basis.

On perusal of the statement made in the condonation of delay

application we are satisfied that no such reason has been assigned. Moreover,

once the appeal was filed belatedly, it was expected on the part of the appellant

to bring on record certified copy of the order. However, in this case an

exemption application has been filed. We would have considered to take lenient

view in the matter had on the first day when the main appeal was taken up,

the appellant had requested for condonation of delay but to the reasons best

known to the appellant consecutively on number of dates despite the fact that

the appeal was taken up no submission was made that the appeal was filed

belatedly. Under Section 61of the I.B. Code, for filing an appeal limitation

period is prescribed as 30 days and thereafter in further 15 days if the parties

are in position to satisfy the court that there was sufficient plausible reason for

non filing of appeal within said period the court can condone the delay but only

within extended period of 15 days.

Company Appeal (AT) (Ins) No. 212 of 2023 & I.A. No. 769 of 2023 -6-

However, considering the ground set forth in the application as well as none

disclosure by the Appellant to the Court regarding filing of the condonation of

delay application on number of dates, we are not inclined to entertain the

condonation of delay application. Accordingly, the condonation of delay

application i.e. I.A. No. 769 of 2023 stands dismissed. Consequently, the

appeal too is dismissed.

[Justice Rakesh Kumar] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

sr/md Company Appeal (AT) (Ins) No. 212 of 2023 & I.A. No. 769 of 2023