TaxTMI 
TaxTMI 
2024 (10) TMI 1136
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....e order. 2. Brief facts of the case and sequence of the events for deciding IA No. 5502 of 2024 are: 2.1. Company Petition No.71/ (ND)/2020 was filed by the Union of India under Sections 241 and 242 of the Companies Act, 2013 arraying the Delhi Gymkhana Club Ltd. as Respondent No.1. In the said petition, the present Appellant was Respondent No.18 as the then Secretary of the Delhi Gymkhana Club. In the Company Petition No.71/ (ND)/2020, various orders were passed by the NCLT including the order dated 24.04.2020 which was passed by learned Single Member (Judicial) including all orders passed subsequent to 24.04.2020 and order dated 26.06.2020. The Appellant filed a CA No.440/PB/2022 praying for recall of the order dated 24.04.2020 and all orders passed subsequent to 24.04.2020 including the order dated 26.06.2020. CA No.440/PB/2022 was heard by Principal Bench and by order dated 15.12.2023, CA No.440/PB/2022 was dismissed by detailed order with cost of Rs.50,000/-. Order dated 15.12.2023 was pronounced by the Court in presence of the Appellant and was uploaded on website of the NCLT on 17.12.2023. Appellant on 08.01.2024 filed a CA No.22 of 2024 seeking extension of time for depos....
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....4. It is submitted that unless the delay in filing the Appeal is condoned, this Tribunal may not enter into the merits of the submissions advanced by the Appellant questioning the order dated 15.12.2023. It is submitted that there is no sufficient cause shown for condonation of delay in filing the Appeal. It is contended that the Appellant after passing the order dated 15.12.2023 has immediately filed the application CA No.22 of 2024 on 08.01.2024, hence, was well aware of the order. Subsequently on 18.02.2024 Appellant himself has filed an application to recall the order dated 15.12.2023 i.e. CA No.49 of 2024 annexing the copy of the order, hence, the plea taken by the Appellant in the application that he was served the copy of the order only on 22.02.2024 cannot be accepted. It is submitted that the Appellant did not choose to file the appeal after passing of the order dated 15.12.2023 which was uploaded on 17.12.2023 rather filed an application for extension of time for depositing the costs and application for recalling of the order are no sufficient cause for condoning the delay. The Appellant who has been filing application after application before the NCLT and appeal before t....
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.... was communicated later to the appellant dated 22- 02-2024, after recall of order dated 15- 02-2024 passed by Ld. NCLT in CA No. 22 of 2024, filed by the appellant for seeking extension of time to pay costs. A copy of the order dated 21.02.2024 recalling adverse 15-02-2024 order with confirmation that Rules- 50 and 150 had been violated in respect of the 15-12-2024 order is annexed as Annexure A- 2. b) That the Appellant preferred an alternate remedy, by filing an application (CA No. 49 of 2024) dated 18-02-2024 seeking recall of the order dated 15-12-2023 but it was not listed till 14-03-2024. A copy of non-complied directions of ld. Registrar NCLT dated 29.02.2024 to list CA No. 49 of 2024 on fulfillment of Rule -13 of NCLT Rules is annexed as Annexure A-3. c) That the Appellant placing good faith upon Ld. NCLT, waited for the pending outcome of CA No. 49 of 2024 which was dismissed due to typing error in Affidavit on 14-03- 2024. Post the dismissal appellant has therefore, filed the present appeal before this Hon'ble NCLAT, New Delhi." 9. The Appellant's case in the application is that the order dated 15.12.2023 was communicated to the Appellant on 22.02.2024. It is ....
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.... of time to deposit the cost. It is relevant to notice two paragraphs in the application i.e. paragraphs 1 and 7 which are as follows:- "1. The present application is filed by Col. Ashish Khanna, SM (retd), Respondent No. 18, in respect of 15.12.2023 order by this Hon'ble NCLT dismissing CA- 440/2022 with direction to pay costs of Rs 50,000/-. It is humbly submitted applicant seeks extension due to financial distress. Respondent No.1 has illegally withheld his dues repeatedly assured to Hon'ble NCLAT and Govt. A copy of 15.04.2021 non-complied Hon'ble NCLAT order and 04.06.2021 redress assured by ex Administrator is annexed as Annexure A-1(colly). xxx xxx xxx 7. For above facts applicant is unable to deposit Rs 50,000/- cost in PM National relief fund till his Rs. 52 Lakh Audit qualified dues are paid. It is submitted without prejudice to appeal the 15.12.2023 order, Ld. NCLT may kindly grant extension, till withheld dues are paid as recorded in repeated court Notices. On 03.09.2023 R-1 Auditor again objected illegal denial of Rs. 3.4 Lakh dues. It was concealed by R-1 in its reply proving more fraud against this hapless R-18. A copy of 03.09.2023 Audit objectio....
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.... is as follows:- "INTERNAL INDEX Sl. No. PARTICULARS Page No. VOLUME-I 1. Internal Index. 1 2. Letter to Bench Officer. 2 3. Notice of Motion, with proof of service. 3-6 4. Memo of Parties in CP No. 71 of 2020, 7-9 5. Memo of Parties to this CA. 10-11 6. Company application, alongwith Affidavit. 12-53 7. Annexure 1: Order dated 15-12-2023. 54-132 8. Annexure 2: NCLAT judgement dated 16-10-2023 (Suchi Paper). 133-142 9. Annexure 3: Written Submissions dated 01-09-2023 (w/o annexures). 143-199 VOLUME-II 10. Annexure 3 (Contd.): Written Submissions dated 01-09-2023. 200-211 11. Annexure 4: Written Submissions dated 23-10-2023 (w/annexures). 212-246 12. Annexure 5: NCLT (Kolkata) order dated 04-01-2024. 247-302 13. Annexure 6: Legal opinion dated 16-08- 2020 issued by Hon'ble Mr Justice S. J. Mukhopadhyay. 303-348 14. Annexure 7: WS dt. 24-08-2020 filed in NCLAT by Mr G Liberhan and Respondent No. 20 Mr A Kathpalia. 349-387 15. Annexure 8: Affidavit complaint against Ld Judicial Member and NCLT's bias for Delhi Gymkhana Club in CP-191/20 by senior me....
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....sdiction', coram non judice, meaning, in breach of the proviso to Section 419 (3) of the Companies Act (2013) (underlining emphasis supplied by the applicant): "23. Consequently, the appeal is allowed and the impugned order dated 01.04.2020 is set aside. The matter is remanded back to the Adjudicating Authority. Those two unnumbered applications are hereby restored. The registry of the NCLT shall assign numbers to both the applications i.e. filed by the RP and Resolution Applicant and then both the applications shall be decided by the Adjudicating Authority in accordance with law by passing a speaking order. The parties are directed to appear before the Adjudicating Authority on 10th November, 2023. It is made clear that we have not touched the merit of the case because we were satisfied that it is a case where impugned order has been passed firstly without jurisdiction and secondly without following the principle of natural justice. All the issues regarding the merits are still open which shall be decided by the Adjudicating Authority in accordance with law. Since, both Counsel for the parties have earnestly requested that a direction may be issued to the Adjudicating Autho....
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....ys for a litigant to file the Appeal after showing sufficient cause for not approaching the Court within the statutory period provided under Section 421(1) and can maintain the Appeal provided it is proved that he could not approach the Court within a prescribed time due to a sufficient cause. 8. Hence, the sufficient cause is a Sine-Qua-Non for the purpose of entertaining an Application and granting Condonation of Delay in such cases. We have considered 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." 16. In the above case, this Tribunal has held that sufficient cause is sinequa- non for the purpose of entertaining an application and granting condonation of delay. 17. We also need to notice another judgment of the Hon'ble Supreme Court reported in "Ramlal, Motilal, Chotelal vs. Rewa Coalfields Ltd.- AIR 1962 SC 361". The Hon'ble Supreme Court has held that even if sufficient cause has been shown, a party is not entitled to the condonation of delay ....
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....at it was appellant's duty to file the appeal as soon as possible within the period prescribed, and that, in our opinion, is not a valid ground." 18. Another recent judgment of the Hon'ble Supreme Court which need to be noticed is judgment of the Hon'ble Supreme Court in "Pathapati Subba Reddy & Ors. vs. Special Deputy Collector- 2024 SCC OnLine SC 513" wherein the Hon'ble Supreme Court has observed that the courts have adopted a very liberal approach in construing the phrase 'sufficient cause' used in Section 5 of the Limitation Act. However, notwithstanding the above sufficient cause for not filing appeal in time is a condition precedent for exercising the discretionary power to condone the delay. In paragraph 16, following was held : - "16. Generally, the courts have adopted a very liberal approach in construing the phrase 'sufficient cause' used in Section 5 of the Limitation Act in order to condone the delay to enable the courts to do substantial justice and to apply law in a meaningful manner which subserves the ends of justice. In Collector, Land Acquisition, Anantnag v. Katiji, this Court in advocating the liberal approach in condoning the delay for 'suf....
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....reme Court has dismissed the Appeal upholding the order of the NCLAT. 21. The submission which has been advanced by Shri Deepak Khosla is on the merits of the order dated 15.12.2023. We are of the view that without condonation of delay in filing the appeal, this Tribunal may not entertain the challenge to the merits of the order. Challenge of the Appellant is that the order dated 15.12.2023 is nullity and per incuriam. He obviously challenges the order on merits. This Appellate Tribunal has no jurisdiction to entertain challenge on merits of the order challenging in the Appeal when the Appeal is not being entertained on the ground that delay in filing the appeal is uncondonable. 22. Counsel for the Respondent has also relied on the judgment of the Hon'ble Supreme Court in "Asma Lateef and Another vs. Shabbir Ahmad and Ors.- (2024) 4 SCC 696" where Hon'ble Supreme Court in paragraph 52 has laid down following:- "52. The legal and factual position of the present case having been noted above, we hold that a decision rendered by a court on the merits of a controversy in favour of the plaintiff without first adjudicating on its competence to decide such controversy would amount to a....
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....eason why the subject-matter in the appeal did not suffer from any infirmity." 25. In view of the above precedents, it is clear that while considering the delay, the Court cannot enter into the merits of the appeal without first condoning the delay in filing the appeal. We, thus, are not persuaded to accept the submission of the Counsel for the Appellant that the Court may consider the submission that the order impugned is without jurisdiction and nullity to obviate the consideration of delay. We hold that without condoning the delay in filing the appeal, merits of the appeal cannot be looked into. 26. We may also notice that in the Rejoinder-Affidavit filed by the Appellant to the reply filed by Respondent No.1 in IA No.5502 of 2024, several allegations and facts have been narrated which are unconnected with the issue of condonation of delay in filing the appeal, hence, the said allegation and averments neither need to be noticed nor dealt with. In the rejoinder, however, appellant has relied on judgment of this Tribunal in Company Appeal (AT) (Ins.) No. 217 & 218 of 2022- "Bhawanishankar Harishchandra Sharma vs. Feedback Highways OMT Pvt. Ltd." in support of his submission tha....