2021 (3) TMI 1445 - AT - Insolvency and Bankruptcy

Condonation of delay of four days in filing appeal - sufficient cause for filing the Appeal in time or not - Appellant claims and it has been argued that no free copy of the Order dated 08th May, 2019 was received by the Appellant or the Corporate Debtor - HELD THAT - The argument that free copy was not served on the Appellant is not relevant. IBC does not have provision to serve free copies. Even if one is to rely on Section 421 (3) of the Companies Act, 2013, there is Judgment in the matter of Sagufa Ahmad and Ors. Vs. Upper Assan Plywood Products Pvt. Ltd. 2020 (9) TMI 713 - SUPREME COURT passed by the Hon ble Supreme Court of India which would be relevant. If the Appellant did not rely on supply of free copy and applied for certified copy and filed Appeal based on certified copy then the Appellant cannot rely on Section 421 (3) of the Companies Act, 2013, to count limitation. Under Section 61 of IBC, the appeal has to be filed within 30 days. This Tribunal may allow an appeal to be filed after the expiry of said period of 30 days if it is satisfied that there was sufficient cause for not filing the appeal in time but such period shall not exceed 15 days. Thus the period of appeal is 30 days and the delay which this Tribunal can condone is only of 15 days over and above the period of appeal. For reasons discussed above, even if limitation was to be counted from 07th June, 2019 as mentioned, the appeal filed on 13.08.2019 must be said to be barred by limitation as it was not filed within 30 days plus 15 days of knowledge. The Application to condone the delay is rejected. The Appeal being time barred, the same is rejected.

Summary

Issues:
- Condonation of Delay in filing the appeal under Section 9 of Insolvency and Bankruptcy Code, 2016.

Analysis:
1. The Appellant, claiming to be the Director and Shareholder of the Corporate Debtor, filed an appeal for Condonation of Delay as the Impugned Order was passed ex-parte. The Appellant argued that he only became aware of the order on 25th June, 2019, after returning from a trip. The delay in filing the appeal was stated to be only four days from the date of knowledge.

2. Respondent No. 1 opposed the Application to condone the delay, stating that the Appellant had been regularly filing returns and the claim of lack of knowledge until 25th June, 2019 was disputed. The Respondent argued that efforts were made to serve the Appellant, making the appeal time-barred.

3. The IRP provided evidence of communication attempts to serve the Appellant, including sending letters and emails, visiting the official address, and sending messengers. The IRP's efforts contradicted the Appellant's claim of lack of knowledge until 25th June, 2019, suggesting the Appellant's statement was for convenience.

4. The Tribunal found the IRP's documented efforts convincing, indicating that the Appellant had received communication in early June 2019. Considering the timeline of events, the delay in filing the appeal exceeded the permissible limit under Section 61 of IBC, which allows a 30-day period for filing an appeal with a possible condonation of up to 15 days.

5. The Tribunal emphasized that the argument of not receiving a free copy of the order was irrelevant under IBC provisions. Referring to a relevant judgment, the Tribunal stated that relying on the supply of a free copy was not a valid reason for delay. The appeal was deemed time-barred and rejected, as it was not filed within the statutory period of 30 days plus the permissible 15-day extension.

6. Ultimately, the Tribunal rejected the Application to condone the delay and dismissed the appeal as time-barred, in accordance with the provisions of Section 61 of IBC. The decision was based on the documented communication efforts by the IRP and the failure of the Appellant to file the appeal within the statutory timeline.