Sucden India Pvt. Ltd vs New Phaltan Sugar Works Ltd & Ors

IN THE MATTER OF: Sucden India Pvt. Ltd. ...Appellant

Versus New Phaltan Sugar Works Ltd. & Anr. ...Respondents

Present: For Appellant: Mr. Sudakshina Prasad, Advocate For Respondent: Mr. Mahesh Agarwal, Arshit Anand and Ms. Geetika Sharma, Advocates for R3 Mr. Agam H Maloo, R2

ORDER

(Virtual Mode) 15.07.2022: This appeal is filed under Section 61(3) of the Insolvency

and Bankruptcy Code, 2016 (in short 'Code') against the order dated

11.11.2019 passed by the Adjudicating Authority (National Company Law

Tribunal, Mumbai Bench) in M.A. No. 3271 of 2019 in CP No. 2956 of 2018

by which resolution plan of Respondent No. 3 has been approved which has

been successfully implemented in the year 2019.

Shorn of the unnecessary details, at the outset, Counsel for the

Respondent has raised an objection about the maintainability of the Appeal

on the ground of limitation. It is submitted that the order of the

Adjudicating Authority was passed on 11.11.2019, whereas the Appeal has

been preferred on 17.02.2020 alongwith an application bearing I.A. No. 789

of 2019 for condonation of delay.

Counsel for the Respondent has submitted that as per Section 61 of

the Code, the limitation to file an Appeal is 30 days which has to be counted from the date of passing of the order. It is further submitted that the

Appellate Authority has the jurisdiction to condone the delay for another 15

days, in terms of proviso to Section 61(1). It is submitted that the Appeal is

hopelessly time barred as it has crossed the limit of 45 days and the plea of

the Appellant that it has been filed when it came to know about the order on

04.01.2020 and is thus within limitation should not be accepted.

Counsel for Appellant, while supporting the application has submitted

that the delay has not been deliberately caused but it has been caused due

to the fact that they were not party to the litigation and the order came to

their knowledge only on 04.01.2020 and therefore, the period of limitation

has been counted from the said date.

Counsel for Respondent has also referred the decisions of the Hon'ble

Supreme Court in the case of V Nagarajan vs. SKS Ispat and Power Limited

& Anr., (2021 SCC Online SC 959) and Safire Technologies Pvt. Ltd Versus

Regional Provident Fund Commissioner & Anr. Civil Appeal No. 2212 of

2021 decided on 29.04.2022 in which it has been categorically held that the

limitation for filing an appeal under Section 61 of the Code shall begin from

the date of pronouncement of order and not from the date of knowledge. It is

also submitted that the same view has been taken by a coordinate bench of

this Tribunal in CA (AT) (Ins) No 527 of 2021 decided on 04.01.2022.

Counsel for Appellant has failed to cite any judgment to the contrary in

which, in the given facts and circumstance, it has been held that the

limitation is to be counted from the date of knowledge. Thus, in view of the

aforesaid, much less the fact that the resolution plan has been approved by

the CoC with 100% voting, we do not find any merit in the present appeal in so far as the limitation is concerned and, hence, the same is hereby

dismissed as not duly constituted. With the dismissal of the application filed

for condonation of delay, any other application which is on record filed by

the Appellant is also dismissed alongwith the appeal.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Kanthi Narahari] Member (Technical)

[Dr. Alok Srivastava] Member (Technical)

Sheetal/RR