Sriramgiri Spinning Mills Ltd vs Oriental Bank Of Commerce & Ors

Company Appeal (AT) (Insolvency) No. 634 of 2019 Company Appeal (AT) (Insolvency) No. 641 of 2019

IN THE MATTER OF:

Sriramgiri Spinning Mills Ltd. ...Appellant

Versus

Oriental Bank of Commerce & Ors. ...Respondent

Present:

For Appellant : Mr. Deepak Mishra and Mr. Mithilesh Kumar Singh, Advocates

ORDER

25.07.2019 Company Appeal (AT) (Insolvency) No. 634 of 2019 :

The application u/s 60(5) was not maintainable at the stage of pre-

admission stage of the application u/s 7 of the 'I&B Code' though it was open to

the 'Corporate Debtor' to take all the pleas except the prayer not to admit the

application. From the record we find that application u/s 7 'I&B Code' was filed

on 1st August, 2018 and the matter was adjourned and with a view to delay the

proceedings, petition u/s 60(5) of the 'I&B Code' was filed by the 'Corporate

Debtor' though it was not maintainable. For the said reason, the Adjudicating

Authority rejected the application by order dated 4th December, 2018.

This apart, the impugned order was passed on 4th December, 2018 and

there is a delay in filing the appeal without explaining the reason. Learned

counsel for the Appellant submits that the order of stay was passed by the

Hon'ble High Court of Telangana, which shows that the Appellant was moving at 2

different Forums to stall the proceedings. Limitation is prescribed under sub-

section (2) of Section 61 of the I&B Code, which reads as :

"61. (1) Notwithstanding anything to the contrary contained

under the Companies Act 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."

In view of the fact that the specific limitation period of 15 days is prescribed

for condoning the delay beyond the period of 30 days, this Appellate Tribunal

has no jurisdiction to condone the delay beyond the specified period even on the

ground that the Hon'ble High Court has passed the stay order.

Learned counsel for the Appellant requested to adjourn the matter to

enable the Appellant to settle the claim with the Bank. However, we are not

inclined to grant any time though it will be open to the Appellant to settle the

claim with the Bank in accordance with law.

Company Appeal (AT) (Insolvency) No. 634 of 2019 Company Appeal (AT) (Insolvency) No. 641 of 2019 3

Company Appeal (AT) (Insolvency) No. 641 of 2019

This appeal has been preferred against the order dated 4th December, 2018

passed by the Adjudicating Authority (National Company law Tribunal),

Hyderabad Bench, Hyderabad against the admission of application u/s 7 of the

'I&B Code'. Similar pleas were taken by the Appellant that the Appellant intends

to settle the matter with the Bank. However, we have already mentioned that

the appeal is barred by limitation. This apart we would like to mention that after

admission of application u/s 7, the appeal by the 'Corporate Debtor' is not

maintainable in view of the decision of Hon'ble Supreme Court in "Innoventive

Industries Ltd. v. ICICI Bank - (2018) 1 SCC 407]" (Para 11).

Both the appeals are dismissed as barred by limitation and not

maintainable

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice A.I.S. Cheema ] Member (Judicial)

[ Kanthi Narahari ] Member (Technical) /ns/gc

Company Appeal (AT) (Insolvency) No. 634 of 2019 Company Appeal (AT) (Insolvency) No. 641 of 2019