TaxTMI 
TaxTMI 
TaxTMI 
2024 (1) TMI 898
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....s For R5 ORDER Per : Justice Rakesh Kumar Jain : This order shall dispose of two appeals bearing CA (AT) (CH) (Ins) No. 364 of 2023 titled as Mr. A Rajendra Vs. Mr. Gonugunta Madhusudhan Rao & Ors. (hereinafter referred to as 'first appeal') and CA (AT) (CH) (Ins) No. 365 of 2023 titled as Mr. A Rajendra Vs. Mr. Gonugunta Madhusudhan Rao & Ors. (hereinafter referred to as 'second appeal'). 2. The first appeal has arisen from the order dated 20.07.2023 by which an application filed by A Rajendra, shareholder and suspended managing director of Dharti Dredging and Infrastructure Ltd. (Corporate Debtor), under Section 60(5) r/w Section 35(1)(n) of the Insolvency and Bankruptcy Code, 2016 (in short 'Code'), seeking a direction to the Respondent therein to place the resolution plan submitted by the him before the CoC for consideration alongwith other resolution plans and further to stay the voting results of the resolution plan, put up for voting pending disposal of the application filed by the Applicant, bearing I.A. No. 407 of 2023 filed in CP (IB) No. 329/7/HDB/2020, has been dismissed. 3. The second appeal has arisen from the order dated 20.07.2023 by which an application fil....
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.... and if the limitation is to be computed from the date of pronouncement of the order, the period of 30 days would end on 19.08.2023 and therefore, the delay of 10 days has occurred but if the limitation is to be counted from the date when the free certified copy was made ready on 01.08.2023 and the appeal having been filed on 28.08.2023 then it is within the period of limitation. It is further averred that if the period from 20.07.2023 to 01.08.2023 i.e. the date until when the knowledge of the contents of the order were not known to the Appellant are excluded as sufficient cause then the appeal is maintainable having been filed on the 40th day from the date of pronouncement of the order. It is further submitted that non-filing of an application for condonation of delay alongwith appeal is not fatal as it is a curable defect. The application for condonation of delay, if it is found or pointed out that the appeal is filed with delay, can be cured later on and in this regard, reliance has been placed on a decision of the Hon'ble Supreme Court in the case of State of M.P. & Anr. Vs. Pradeep Kumar, (2000) 7 SCC 372. Counsel for the Appellant has further admitted that the paid certified....
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.... taken by the Adjudicating Authority which deserves to be excluded for the purpose of calculation of limitation under Section 12(3) of the Act, 1963 and has also relied upon a judgment of the Hon'ble Supreme Court in the case of Sanket Kumar Agarwal (Supra). The Appeal was filed on 28.08.2023 whereas the application for condonation of delay was filed on 06.12.2023 in which the Appellant has taken a new stand alleging that the free certified copy was made available to him on 01.08.2023 on the basis of which the appeal has been filed, therefore, a period of 10 days, spent from 20.07.2023 when the order was passed till 01.08.2023 when the free certified copy was made available should not be included in the period of limitation. It is nowhere mentioned in the applications for condonation of delay that the Appellant had applied for certified copy (paid copy) on 01.08.2023 and received the same on 10.08.2023 and therefore, the said period should be excluded. It is argued that the Appellant has not even come to the court with clean hands because the Appellant has admitted in both the cases that he has not applied for certified copy at all. It is further submitted that if this is the posit....
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....nd in this regard, Counsel for the Respondents has submitted that Sesh Nath Singh (Supra) is in respect of filing of the application under Section 7 of the Code and not in regard to the filing of the appeal under Section 61 of the Code. 12. We have heard Counsel for the parties and perused the record with their able assistance. 13. The undisputed facts are that both the appeals have been filed against the order dated 20.07.2023. The first appeal has been filed when the application filed by the Appellant for seeking direction to the Respondent therein to place the resolution plan submitted by the Applicant before the CoC for its consideration alongwith other resolution plans and further to stay the voting results of the resolution plan, which is put for voting pending disposal of the application filed by the Applicant has been dismissed and the second appeal has been filed by the Appellant because the application filed by the RP of the Corporate Debtor for approval of the resolution plan submitted by SRA was approved. Both the appeals have been filed on 28.08.2023. The first Appeal has been filed with the free certified copy made available on 01.08.2023 whereas the second appeal h....
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.... which has been consumed in obtaining the certified copy may be excluded in terms of Section 12 of the Act, 1963. Although, the Appellant has made this statement of fact in para 17 of the appeal and has declared it to be true while making a declaration and verification of the contents of appeal but as a matter of fact, no certified copy was applied at all much less on 01.08.2023, therefore, it was never received on 10.08.2023 as stated and no certified copy has been appended with the grounds of appeal as well even after it has been filed. The question would thus arise as to why the Appellant has made false averments in the grounds of appeal? The averment made in the grounds of appeal are further declared to be true and also that nothing has been suppressed and concealed and an affidavit has been filed in support of the appeal. In para 2 of the affidavit, he has averred that the contents of the accompanying appeal are true and correct to his knowledge and belief as also derived from the records of the company and in the affidavit it is also verified that the declaration of the contents of the affidavit are true and correct. However, in the application filed for seeking condonation o....