TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 571
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 421 (3) of the Companies Act, 2013 for filing an Appeal, expired on 06.05.2023. However, the 'Appeal' came to filed within the further 45 days mentioned in proviso to Section 421 (3) of the Companies Act, 2013. 3. It is represented on behalf of the Petitioners/Appellants that the reasons for the delay of 18 days in preferring the instant 'Appeal' is that the 2nd Appellant being a party before this Appellate Tribunal not only in its individual capacity but as the Managing Director and authorized signatory of the 1st Appellant/1st Petitioner was 'unwell' during this period. Also that the 2nd Appellant had recovered only in the 2nd week of May, 2023 and is now able to execute the instant 'Appeal' and ancillary applications. Therefore, according to the Petitioners/Appellants it was not possible for the 2nd Appellant to instruct the Learned counsel, in regard to the preferring of the instant 'Appeal' and other ancillary applications within the period of 45 days specified in Section 421(3) of the Companies Act, 2013. 4. The Learned counsel for the Appellants takes a stand that the 'condonation application' dated 24.05.2023 appears as a Defected document, on the 'Data Management System....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n such matters where refusal to condone delay is likely to result in a meritorious matter being thrown out at the very threshold.' 10. According to the Petitioners/Appellants, if the delay of 18 days is not condoned, an irreparable harm and injury would be caused to the Appellants. 11. The Learned counsel for the Petitioners/Appellants submits that the Petitioners/Appellants in IA No.2612/2023 in Comp App (AT) No.104/2023 have exhibited 'sufficient cause', for the delay of 18 days in filing the instant Appeal on the file of this 'Tribunal'. Therefore, on behalf of the Petitioners/Appellants, the condonation of 18 days delay in preferring the instant 'Appeal' is to be condoned in the interest of justice. 1st RESPONDENTS' CONTENTIONS 12. On behalf of the 1st Respondent, the Learned Senior Counsel submits that the 1st Respondent opposes the IA No.2612/2023 (condone delay application) based on the reasons. (i) the Appellants have exhibited sheer disregard to the process of law and dubiously altered their stand in the pre-defect application e-filed on 24th May, 2023 (which forms part of the judicial record) and the final copy of the application placed before this Hon'ble Tribunal ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not only in his individual capacity but also as the Managing Director and authorized signatory of the appellant No.1 was unsell during this period. The Appellant No.2 has only recovered in the second week of May, 2023 and is now able to execute this Appeal and ancillary applications. As such, it was not possible for the Appellant No.2 to instruct counsel with respect to the filing of the present Appeal and ancillary applications within the period of 45 days prescribed in Section 421(3) of the Companies Act, 2013. 16. The Learned counsel for the 1st Respondent points out that the Appellants/Petitioners had changed their stand and made false averments on 'Oath' in a mala fide manner only to mislead this Tribunal into passing a favourable order further when a person/party is curing defects. It is only rectifying the defects, pointed out by the Registry of this Tribunal and not changing/modifying the contents of its plea. 17. It is represented on behalf of the 1st Respondent that in its 'Rejoinder', the Appellants have pleaded that such an e-filed application, does not form part of Record and cannot be relied upon. Further the conduct of the Appellants ought not to be condone....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d, shareholder of Srei Infrastructure Finance Ltd V. Reserve Bank of India and Another reported in 2022 SCC Online NCLAT 1611 wherein at paragraph 19 and 20 it is observed as under:- "19. Any question of delay condonation must go through deep and sufficient scrutiny in the context of the Code. The circumstances cited for condonation of delay in re-filing has to be in consonance with the aims and objects of the Code and not frustrate the scheme of the Code. The natural corollary that follows is that condonation of delay in re-filing is not available just for the asking. This Tribunal needs to be fully satisfied that the delay was unavoidable and the applicant was consistently diligent in pursuing the matter. The question of condoning any delay in re-filing would have to be considered in the context of the plausible explanation given to show that the delay was on account of reasons beyond the control of the applicant and could not be avoided despite all possible efforts by the applicant. 20. We now proceed to test the conduct of the applicant on the anvil of whether the applicant acted with due diligence and dispatch. From the submissions and pleadings made by the Appellant, thre....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the arguments of the Counsel for the Appellant and after perusal of the averments made in the Application, are of the considered opinion that the reason given in the Application do not constitute sufficient cause because the Appellant had been seeking under unnecessary beliefs." 25. The Learned counsel for the 1st Respondent refers to the decision of this Tribunal dated 25.04.2023 in Gurusharan Singh Sawhney V Harkiran Kaur Sawhney and Ors, Company Appeal (AT) No.53 of 2023 reported in MANU/NL/0392/2023 wherein at para 7 it is observed as under:- "7. On examination of the aforesaid statement, it is evident that no plausible reason has been assigned for delay in filing the appeal. Under provision contained in Section 421 an appeal is to be filed within 45 days, however if further after expiry of 45 days appeal is not filed, then thereafter this tribunal is not competent to entertain the appeal. However, if during extended within 45 days, a party in a position to satisfy the court regarding the reasonable ground for delay, this court may entertain such petition. Considering the statement made in the condonation petition, we are not satisfied that any plausible explanation has bee....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... hereinabove there was a delay of 44 days in preferring the appeal which was beyond the period of 15 days which maximum could have been condoned and in view of specific statutory provision contained in Section 61(2) of the IB Code, it cannot be said that the NCLAT has committed any error in dismissing the appeal on the ground of limitation by observing that it has no jurisdiction and/or power to condone the delay exceeding 15 days." 27. The Learned counsel for the 1st Respondent points out the decision dated 27.07.2023 in Company Appeal (AT)(CH)(Ins) no.208/2023 between A Sai Siva Jyothi V. Ms Sripriya Kumar RP of M/s Prasad Properties & Investments Pvt Ltd wherein at para 8 it is observed as under:- "8. Be that as it may, the Appellant then took further period of 15 days i.e. the appeal has been filed on the last day of the extended period of 15 days without giving any cogent reason for not preferring the appeal within the statutory period or even before that. The only reason given is that after she came to know the impugned order dated 22.03.2023 on 26.03.2023, she collected relevant documents and filed the appeal. The reason assigned in this application is not at all sufficie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n Professional and Liquidator of M/s Titanium Tantalum Products Limited, Company Appeal (AT)(CH)(Ins) no.182/2022 wherein at para 41 it is observed as under:- "Aspect of Delay : 41. It is to be remembered that the length of the delay is immaterial. However, the acceptability of an explanation furnished by the 'Party' is the 'prime criterion'. A Tribunal or a Court of Law will be very reluctant/slow to execute the delay to lend a helping hand/assistance to a 'Litigant'/Stakeholder who is guilty of ínaction' or bad faith or latches or negligence." 30. The Learned counsel for the 1st Respondent refers to the order dated 05.09.2023 in DS Kulkarni Associates V. Manoj Kumar Aggarwal, company appeal (AT)(Ins) No.924 of 2023 wherein at para 7 it is observed as under:- "7. Section 61(1) provides a right of appeal to a person aggrieved by the order of the Adjudicating Authority. Section 61(2) further provides a period of 30 days for filing the Appeal before the Appellate Tribunal under Section 61(1) of the Code. In case, the Appeal is not filed within the prescribed period of 30 days, proviso to Section 61(2) provides for a period of 15 days within which the Appeal can be file....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en Mr. A Rajendra, ex Shareholder and suspended Board of Director of Dharti Dredging & Infrastructure Ltd Vs. Mr. Gonugunta Madhusudhan Rao RP of Dhart Dredging & Infra Ltd & Or in Company Appeal (AT)(CH)(Ins) No.364 of 2023 wherein at para 15 it is observed as under:- "15. Thus, from the aforesaid discussion, three issues emerges in this case, firstly, the Appellant is guilty of suppressio veri and suggestio falsi who has made a totally wrong averments in para 6 and 17 of the grounds of appeal which has been declared and verified to be correct and also filed an affidavit in support of it because, firstly, the appeal is not within the limitation though a declaration is made in para 6 of the grounds of appeal that the Appeal is within the period specified in Section 61 of the Code and secondly the Appellant has obtained the certified copy (paid copy) applying the same for it on 01.08.2023 and received the same on 10.08.2023, therefore, the period of 10 days deserves to be excluded in terms of the Section 12 of the Act, 1963. Secondly, the Appellant has not even applied for the certified copy (paid copy) at all in filing of the appeals and even one application has been filed i.e. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hereof, we are of the considered opinion that there is hardly any merit in this application which requires our consideration and interference, consequently, the application is found devoid of any merit and the same is hereby dismissed. No costs." 34. The Learned counsel for the 1st Respondent cites the decision dated 27th July, 2023 between DCB Bank Limited V Ramakrishnan Sadasivam & 3 Ors, Company Appeal (AT)(CH) No.207/2023 wherein at para 12 onwards it is observed as under:- "12. Now, the question is as to whether there is a sufficient cause assigned by the Appellant for the purpose of condoning the delay. Although the limitation to challenge the impugned order started w.e.f. 03.03.2022 but even if it is presumed that the Appellant was pursuing its other remedy to challenge the order of exparte itself and had remained unsuccessful till the Hon'ble Supreme Court when its Civil Appeal was also dismissed on 06.04.2023 and the period of limitation is to be counted from 06.04.2023, the period of 30 days for the purpose of filing of this appeal had expired on 06.05.2023. If 15 days more are added which are prescribed under Section 61(2) proviso then the period of 45 days would have....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lso corrected an inadvertent error in its Application seeking condonation of delay dated 24.05.2023. 38. The Learned counsel for the Petitioners/Appellants comes out with the plea that in the Application seeking 'condonation of delay' dated 24.05.2023 as well as dated 30.05.2023, the Petitioners/Appellants had consistently mentioned that the Managing Director and authorised signatory of the Appellant No.1 was unwell during the period when the captioned appeal was supposed to be executed. 39. It is represented on behalf of the Petitioners/Appellants that there was 'no concealment' on Appellants/Petitioners part, relating to the reason for delay in filing the captioned Appeal. 40. According to the Petitioners/Appellants, the 1st Respondent is endeavouring to take focus from the main issue in the captioned Appeal i.e. impleadment of Respondent No.4 i.e. Mr. Jaikishan Bhagchandka in the Company Petition No.74/2022 instituted by the Respondent No.1 herein titled as Preeti Bhagchandka V Negolic India Ltd and Ors which is pending before the NCLT, New Delhi. 41. According to the Petitioners/Appellants, on 01.05.2023 the authorised signatory of the Appellant No.1 was advised bed rest fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the impugned order came to be passed, on 22.03.2023 and the limitation for preferring the Appeal as per Section 421(3) of the Companies Act, 2013 is 45 days and the time for preferring the Appeal got expired on 06.05.2023. However, the Appeal was filed before this Tribunal within further 45 days mentioned in the proviso to Section 421(3) of the Companies Act, 2013. 46. According to the Petitioners/Appellants the 2nd Appellant being a party before this Tribunal not only in his individual capacity but also as Managing Director and authorised signatory of the 1st Appellant was 'unwell' during this period. Moreover, the 2nd Appellant had recovered from illness in the 2nd week of May, 2023 and was able to execute the instant Appeal and other ancillary applications. Therefore, it was not possible for the 2nd Appellant to instruct Advocate with regard to the preferring of the Appeal and ancillary applications within 45 days period mentioned in Section 421(3) of the Companies Act, 2013. 47. The 1st Respondent has taken a contra stand that the Petitioners/appellants have exhibited sheer disregard to the 'process of law' and dubiously altered their stand in the pre-defect application, e-fi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Petitioners/Appellants have produced a medical certificate dated 01.05.2023 (vide Annexure A-1 of Rejoinder) from the Sterling Dental Clinic, New Delhi, in respect of Mahesh Kumar Bhaagchandka and the perusal of the said certificate shows that extraction of 31, 34, 41 etc. was done and the medication was prescribed and in fact the patient was advised to rest and stay at home for a period of two weeks. 52. In respect of 'condone delay application' a balance is to be struck between sufficient cause and the compensation which cost must be substantial as per decision in Gokulnanda Mohanti V. Ramibala Mohanty, 1998 1 CCC 495 vide para 9. 53. In respect of short delays concerning condonation, there is no ambit to impute any inaction or negligence or lack of bona fide as per decision in LIC V. BA & Brothers (Eastern) Ltd, Indian Civil Cases 5 (Cal). Moreover, the determining factor is whether there is plausible or reasonable explanation for the delay in question, in filing the Appeal. 54. What counts is not the length and breadth of delay. The Tribunals are meant for 'imparting justice' and 'not to scuttle justice'. Indeed the 'power of condoning the delay', is to be considered by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....horised signatory of the Appellant No. 1 was unwell during this period and further that the 2nd Appellant had recovered in the 2nd week of May, 2023 and was not able to execute the Appeal and ancillary applications etc., this Tribunal, is of the considered view that the Petitioner/Appellants have consistently mentioned that the Manging Director and the authorised signatory of the 1st Appellant was unwell during the period and in fact, on the behalf of the Petitioner/Appellants, a Medical Certificate from Sterling Dental Clinic dated 01.05.2023 was produced in respect of Mr. Mahesh Bhagchandka(the 2nd Appellant and MD of Appellant No. 1) which indicates that the 2nd Appellant and MD of Appellant No. 1 was under treatment for extraction of 31,34,41 and the patient was advised to rest and stay at home for two weeks, and in any event the delay of 18 days in the present Appeal is satisfactorily explained on the side of the Petitioners / Appellants, as sufficient/bonafide cause, and when no negligence or inaction nor want of bonafides is attributable to a party for the delay in filing a remedy, then, it certainly constitute a sufficient cause in the present Appeal as held by this Tribuna....