TaxTMI 
TaxTMI 
2023 (10) TMI 752
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....8/2023 IA No. 1029/2023 & IA No. 1031/2023 in COMPANY APPEAL (AT) (CH) (INS.) NO. 339/2023 WITH IA No. 1034/2023 & IA No. 1045/2023 in COMPANY APPEAL (AT) (CH) (INS) NO. 340/2023 IA No. 1037/2023 & IA No. 1038/2023 in COMPANY APPEAL (AT) (CH) (INS) NO. 341/2023 WITH IA No. 1041/2023 in COMPANY APPEAL (AT) (CH) (INS) NO. 342/2023 [ Justice M. Venugopal ] Member ( Judicial ) And [ Shreesha Merla ] Member ( Technical ) For the Appellant : Mr. Avinash Krishnan Ravi, Advocate For Ms. Harshini Jothiraman, Advocate For the Respondents : Mr. Pranava Charan, Advocate, For R1 ORDER (Virtual Mode) [Per: Shreesha Merla, Member (Technical)] 1. IA No. 1022/2023 in Company Appeal (AT) (CH) (Ins) No. 337/2023, is preferred ....
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....ein and that an ex-parte Order was passed on merits and therefore, the Applicant / Appellant were unaware of the Impugned Order and sought for condonation of delay in both re-filing and filing of the Appeal. 5. The Learned Counsel for the Respondent argued that the 'Adjudicating Authority' had ordered 'Notices' to all the Parties on three occasions (with two paper publications) and 'Notices' were delivered to Assori Narasimhan, Satyan Kasturi, Acolyte Soft Private Limited, Clean Switch India Private Limited and Enterprise Business Solutions Private Limited. The Learned Counsel for the Respondent drew our attention to the fact that the address of Badri Kasturi and Connect Wind (India) Private Limited, mentioned in the 'Notice' sent by the....
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.... pleading or document." 6. A perusal of the record of the Registry shows that the Appeal was e-filed on 15/10/2022. It is the contention of the Learned Counsel for the Applicant / Appellant that having been set ex-parte before the Adjudicating Authority, they were unaware of the Order till 03/10/2022 when the IRP had sent communication of the same, the Appeal could not be filed within the statutory limit of 30 days, and there was a delay of 15 days from the date of the Impugned Order. At this juncture, it is relevant to mention that the CIRP was initiated on 13/08/2019, the 'Adjudicating Authority' had directed on 31/03/2021 to publish 'Notice' in the newspapers and the first service vide paper publication was undertaken on 23/04/2021 in....
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....ial grounds to support to the contention of the Learned Counsel for the Applicant / Appellant that the Applicants / Appellants were unaware of the Order having regard to the fact that there were two paper publications made and 'Notices' were 'served' to R2, R3, R4, R5 & R7 as recorded by the 'Adjudicating Authority' in Para 4 of the Impugned Order. The Hon'ble Apex Court in the matter of 'Esha Bhattacharjee Raghunathpur Nafar Academy' in [(2013) 12 SCC 649] has held as follows: "21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. 21.2. (ii....
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....s inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to ....
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....asically subjective. In the instant Case, it is seen that there is an inordinate delay in re-filing also. As per the Report of the Registry, defects were intimated and the file was returned on 07/12/2022 but the Applicant had refiled the same only on 31/03/2023 with a delay of 115 days. The contention of the Learned Counsel for the Applicant / Appellant that the delay is only 85 days is incorrect. Be that as it may, there is no explanation for this delay except for stating that 'there was a communication gap between the Clerk and the Registry on account of the wedding of the clerk coupled with technical difficulty associated with filing and tracking in the e-filing portal'. We do not find this explanation 'a sufficient cause' and this Tribu....