2023 (5) TMI 531

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....rivastava, Mr. Avdhesh Bairwa, Advocate for R2 ORDER Per : Justice Rakesh Kumar Jain (Oral) The Operational Creditor - Yogesh Gupta filed an appeal under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred as to 'The Code') R/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to initiate Corporate Insolvency Resolution Process (hereinafter referred as to 'CIRP') against M/s. Aadi Best Consortium Private Limited (Corporate Debtor). The said application was admitted by order dated 31.03.2022. The said impugned order is amenable to appeal in terms of Section 61 of the Code for which a period of 30 days is prescribed and in case there is a delay then it is provided to b....

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....rocess under the provisions of IBC commences and is given effect to. 5. Accordingly, in the unique facts and circumstances of this case, the Petitioner-Cloud9 Apartment Owners Association is permitted to approach the NCLAT challenging the order dated 31st March, 2022. The appeal shall not be dismissed on the ground of limitation, if the Petitioner approaches the NCLAT within 15 days. 6. None has appeared for the Respondents. 7. This Court has not considered the legal questions raised in this petition. 8. Petition is disposed of in these terms. All pending applications are disposed of." 3. The present appeal is then filed on 04.04.2023 along with an application bearing IA No. 1874 of 2023 for condonation of dela....

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....led within thirty days before this Tribunal and proviso to Section 61(2) says that the period of 30 days allowed to file the appeal can further be extended to 15 days and not thereafter. Meaning thereby, the limitation to file an appeal before this Tribunal is only upto 45 days out of which the period of fifteen days can be used by the Appellant for the purpose of extension of period of limitation on assigning sufficient cause to the satisfaction of the Appellate Authority for condonation of delay. 7. In the present case, admittedly within the period of 30 days and even the extended period of 15 days i.e. 45 days no appeal was filed rather the Writ Petition was filed before the Hon'ble High Court in which the aforesaid order has been pas....

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.... ground for passing an order in relation whereto the appellants miserably fail to establish a legal right. It is further trite that despite an extraordinary constitutional jurisdiction contained in Article 142 of the Constitution of India, this Court ordinarily would not pass an order which would be in contravention of a statutory provision. As early as in 1911, Farwell, L.J. In Latham v. Richard Johnson & Nephew Ltd. (1911-12) All ER Rep 117 observed: (All ER p. 123E) "We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment. Sentiment is a dangerous will o' the wisp to take as a guide in the search for legal principles" Thus, considering the statutory provisions which provide that delay b....