State Bank Of India vs Khagaria Purnea Highway Projects ...

1. State Bank of India 09th Floor, Jawahar Vyapar Bhawan I, Tolstoy Marg, Janpath, New Delhi - 110001 ...Appellant

Versus

1. Khagaria Purnea Highway Private Limited, Punj Lloyd House, 17-18, Nehru Place, New Delhi- 110019 ...Respondent No. 1

2. Punj Lloyd Infrastructure Limited, Punj Lloyd House, 17-18, Nehru Place, New Delhi- 110019 ...Respondent No. 2

3. Mr. Ashwini Mehra, Liquidator of Punj Lloyd Limited, Correspondence Address: Punj Lloyd Limited C/O Mr. Surendra Raj Gang, GT Restructuring Services LLP, L-41, Connaught Circus, New Delhi - 110001 Registered Address of RP with IBBI: A-1601, Salarpuria Magnificia, 15th Floor, ...Respondent No. 3 Old Madras Road, Bengaluru - 560016

For Appellant: Mr. Abhinav Vasisht, Sr. Advocate with Mr. Prateek Kumar, Vaishnavi C., Moha Praanjpe, Akshita, Advocates For Respondent: Sr. Advocate Malvika Trivedi, Sunil Fernandes, Parag Maini, Raghav Chadha, Advocates -2-

JUDGEMENT

Ashok Bhushan, J:

1. I.A. No. 3412 of 2022 has been filed by the Appellant praying for

condonation of delay in filing the Appeals. These two Appeals have been filed

against the Orders dated 08th June, 2022 and 31st August, 2022. These

Appeals have been filed on 12th September, 2022. In so far as the Order

dated 31st August, 2022 is concerned, the Appeal is within time. However, in

reference to the Order dated 08th June, 2022, there is delay in filing the

Appeal.

2. In the Application filed under Section 5 of the Limitation Act seeking

Condonation of Delay it is stated that the Respondent herein filed an I.A. No.

2691/2022 against the Appellant (SBI) and National Highway Authority of

India (NHAI), which Application was heard on 08th June, 2022 on the

preliminary issue regarding the maintainability. The Applicant's case is that

on 08th June, 2022, Orders were reserved and after 08th June, 2022,

Learned Counsel for the Appellant checked on daily basis for a copy of the

Order on the website of the Authority and he became aware about the Order

only on 01st August, 2022 since 08th June, 2022 the Company Petition along

with other I.As were listed on different dates but the Application I.A. No.

2691/2022 was not listed since the last order was never uploaded on the

website. Although, next date fixed in the Application was 06th July, 2022 but

Application I.A. No. 2691 of 2022 was never listed. After coming to know

about the Order, the Appeal has been filed and Appellant's case is that there

is delay of 13 days in filing the Appeal which need to be condoned.

I.A. No. 3412/2022 in Company Appeal (AT) (Insolvency) No. 1137-1138 of 2022 -3-

3. The Delay Condonation Application came for hearing before this

Tribunal on 26th September, 2022, on which date, following order was

passed:

"26.09.2022: I.A. No. 3412 of 2022 This is an Application praying for condonation of delay in filing this Appeal. This Appeal has been filed against two orders dated 08.06.2022 as well as the order dated 31.08.2022. The Appeal has been presented in this Tribunal on 12.09.2022. Insofar as the order dated 31.08.2022 is concerned, the Appeal is within time. With regard to the order dated 08.06.2022, the Appellant has prayed for condonation of delay.

2. Shri Abhinav Vasisht, Learned Senior Counsel for the Appellant submits that on 08.06.2022 the parties were heard on I.A being I.A. No. 2691 of 2022 but the order was not dictated in the Court and was not pronounced on that date. He submits that he came to know about the order only on 01.08.2022 when it was uploaded on the website. He submits that the I.A. No. 2691 of 2022 was not listed on several dates when the other Applications were listed.

3. Learned Senior Counsel for the Respondent has refuted the submissions of the Counsel for the Appellant and submits that the order was pronounced on 08.06.2022 and the Appeal is barred by time insofar as the order dated 08.06.2022 is concerned.

4. In the facts of the present case, we think it appropriate to call for a report from the Registrar of the NCLT with regard to the status of the order dated 08.06.2022, the date of uploading and other relevant

I.A. No. 3412/2022 in Company Appeal (AT) (Insolvency) No. 1137-1138 of 2022 -4-

facts. Let Report be submitted by the Registrar NCLT within two weeks from today. Copy of this order be forwarded to the Registrar, NCLT for submitting appropriate Report.

5. List the matter on 11.10.2022.

In view of the fact that we are considering the Appeal against the order dated 08.06.2022 and the matter has been fixed on 11.10.2022, we expect that the said Application be not heard and disposed of in the meantime."

4. In pursuance of the Order of this Tribunal dated 26.09.2022, a Report

has been submitted by the Registrar of the National Company Law Tribunal

(NCLT). The Registrar of the NCLT has sent an Email dated 13th October,

2022 to the Registrar of NCLAT. The Report mentions following:

"...

Dear Sir, In relation to the captioned matter, a Report has been sought by Hon'ble NCLAT with regard to the status of the order dated 08.06.2022 from the Registrar of NCLT, the date of uploading and other relevant facts. It was further directed that the Report be submitted by Registrar NCLT within two weeks from 26.09.2022.

In this regard it is submitted that NCLT Registry has received the order of Hon'ble NCLAT only on 12.10.2022. Therefore, it is humbly submitted that there was no intention of willful disregard of Hon'ble NCLATs direction.

As far as the order of NCLT in this particular matter is concerned, it has been ascertained that the matter was listed on 08.06.2022 and was heard by the

I.A. No. 3412/2022 in Company Appeal (AT) (Insolvency) No. 1137-1138 of 2022 -5-

Hon'ble Principal Bench with the Coram of Hon'ble Member (J) Shri Dharminder Singh and Hon'ble Member (T) Shri Avinash Srivastava. The order was uploaded on 29.07.2022.

These facts may be kindly placed before Hon'ble Principal Bench, NCLAT.

Kind Regards, ......"

5. The Registrar of NCLT in his Report has stated that matter was listed

on 08th June, 2022 and was heard by the Principal Bench and was uploaded

on 29th July, 2022. Vide Order dated 26.09.2022, Report was called for from

the Registrar. We have clearly asked with regard to the status of the Order

dated 08th June, 2022 and date of uploading and other relevant facts. The

Report sent by the Registrar of NCLT only mentions that case was listed on

08th June, 2022 and was heard by the Principal Bench and was uploaded on

29th July, 2022.

6. The submissions which has been pressed by the Learned Counsel for

the Appellant is that on 08th June, 2022, Application was heard on the

preliminary issue but the Order was not pronounced on the said date. It is

not the case that Order was reserved on any earlier date and

pronouncement was made on 08th June, 2022. According to the Report of

the NCLT that Order was itself uploaded on 29th July, 2022 i.e. more than

five weeks after the date when the matter was heard.

7. Learned Counsel for the Respondent has only emphasized on the fact

that the Appeal has to be filed within 30 days from the date of the Order

impugned. Learned Counsel for the Respondent has also submitted that

detailed arguments were made on 08th June, 2022. Affidavit filed in the

I.A. No. 3412/2022 in Company Appeal (AT) (Insolvency) No. 1137-1138 of 2022 -6-

Reply, does not mention that Order was dictated in the open Court and was

pronounced on the same date i.e. 08th June, 2022. In paragraph 09 of the

Reply, following has been stated:

"9. Having heard detailed arguments on

08.06.2022, the Adjudicating Authority was pleased to reject the preliminary objection raised by the Appellant herein with regards to the maintainability of the said application i.e. I.A. No. 2691 of 2022 filed by the Answering Respondents and directed issuance of notice in the said Application."

8. Learned Counsel for the Respondent submits that in absence of any

material submitted along with Application by the Applicant, to prima facie

demonstrate that Order was not available on 08th June, 2022 and was

available thereafter, the Appellant cannot claim extension of limitation. The

Respondent is asking the Appellant to prove a negative fact by giving

evidence. The Appellant has categorically mentioned that arguments were

heard on 08.06.2022 and according to the Appellant, Order was reserved

whereas the Respondents submit that preliminary objection was rejected but

neither in the Report submitted by the Registrar NCLT nor in the Affidavit of

Reply, it is stated that order was dictated in the open Court on 08th June,

2022 and Order was made available to the parties. We cannot throw aside

the submissions of the Appellant that they were under impression that

Order was reserved on 08th June, 2022 which order came to be uploaded on

29th July, 2022.

9. From the facts and circumstances which have been brought on record

and the Report of the Registrar, the mere mentions of the words "Order

I.A. No. 3412/2022 in Company Appeal (AT) (Insolvency) No. 1137-1138 of 2022 -7-

pronounced on 08th June, 2022" is not sufficient to prove that Order was

made available on 08th June, 2022. The present is case where Appellant

submits that arguments were heard on 08th June, 2022 and Orders were

reserved. They were not aware of the Order till it was uploaded hence there

was no occasion for filing an Appeal by them. Reliance has been placed by

the Learned Counsel for the Respondent in "V. Nagarajan Vs. SKS Ispat

and Power Limited & Ors." [(2022) 2 SCC 244] decided by Hon'ble

Supreme Court on 22.10.2021. In the above case, the Appellant was present

before the NCLT when the Interim Relief was denied and Miscellaneous

Application was dismissed. The Court was of the view that since a copy of

the Order was not applied immediately the Appellant was not entitled to take

any benefit of the fact that Order was uploaded on 12th March, 2020. The

present is a case where Appellant cannot be blamed for not applying the

certified copy of the Order dated 08th June, 2022 since according to the

Appellant, the Order was not pronounced nor it was uploaded although

Appellant was present in the Hearing and his Learned Counsels participated

in the Hearing raising objection regarding the maintainability of the

Application. There cannot be any dispute to the law laid down in the "V.

Nagarajan" (supra). The facts and circumstances of the present case are

entirely different. Appellant's case is that Order was reserved on 08th June,

2022 and was not made available and from the Report which we have called

for from Registrar NCLT it has not come to notice that Order was made

available, neither Registrar in his Report nor Respondent in the Reply have

stated that Order was dictated in the open Court on 08th June, 2022 and

was made available on 08th June, 2022.

I.A. No. 3412/2022 in Company Appeal (AT) (Insolvency) No. 1137-1138 of 2022 -8-

10. We are satisfied that present is a case where the Appeal cannot be

thrown out on the ground of limitation. After order became available on 29th

July, 2022, the Appeal has been filed within 45 days from the date when

Order was made available to the Appellant. Order was made available on

29th July, 2022 and 30 days' limitation period came to an end on 28th

August, 2022 and within 15 days thereafter, the present Appeal has been

filed on 12th September, 2022. We, in exercise of our jurisdiction under

Section 61(2) proviso of the Code, find it fit case to condone the delay which

is less than 15 days. In view of the above, I.A. No. 3412 of 2022 is allowed.

Delay in filing the Appeal is condoned in exercise of our jurisdiction under

Section 61(2) proviso of the Code.

List these Appeals "For Admission" on 07th November, 2022.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Mr. Barun Mitra] Member (Technical)

NEW DELHI 02nd November, 2022

Basant

I.A. No. 3412/2022 in Company Appeal (AT) (Insolvency) No. 1137-1138 of 2022