2023 (10) TMI 752 - AT - Companies Law

Condonation of delay in both re-filing and filing of the Appeal - Notice was never received by the Applicant / Appellant herein - ex-parte Order was passed on merits. 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. HELD THAT - The Hon ble Supreme Court in ESHA BHATTACHARJEE VERSUS MANAGING COMMITTEE OF RAGHUNATHPUR NAFAR ACADEMY AND OTHERS 2015 (1) TMI 1053 - SUPREME COURT has clearly laid down that an Application for condonation of delay should not be dealt with, in a routine manner on the base of individual philosophy which is basically 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 Tribunal is of the view that the reason cited are not adequate to condone the inordinate delay of 115 days in refiling. This Tribunal is of the earnest view that despite service of Notice and two paper publications as noted by the Adjudicating Authority the Applicants / Appellants have not chosen to appear before the Adjudicating Authority and now cannot state that they were unaware of the Order, specifically having regard to the fact that two of the addresses to whom the Notices were returned, unserved are one and the same given in the Memo of Parties in the Appeal. This Tribunal is not satisfied with the explanation furnished and therefore, the Applications seeking condonation of delay in refiling as well as the delay in filing of the Appeal are dismissed.

Summary

Issues involved:
The issues involved in this judgment include condonation of delay in re-filing and filing of the Appeal, communication gap between the Clerk and the Registry, technical difficulties associated with e-filing portal, the ex-parte Order, restoration of the Company, and the sufficiency of cause for delay.

Condonation of Delay in Re-filing and Filing of the Appeal:
The Applicant sought condonation of delay in re-filing and filing the Appeal due to a communication gap between the Clerk and the Registry, technical difficulties with the e-filing portal, and being unaware of the Impugned Order until later. The Respondent argued against condonation citing the service of Notices to various parties and the lack of sufficient cause. The Tribunal examined the timeline of events, including the initiation of CIRP, publication of Notices, and the Impugned Order date. The Tribunal referred to Section 61 of the IBC, 2016 regarding the limitation period for filing an Appeal. Despite the Applicant's contentions, the Tribunal found no substantial grounds to support the claim of being unaware of the Order and dismissed the Applications seeking condonation of delay.

Legal Principles and Precedents:
The Tribunal referenced the Hon'ble Apex Court's judgment in 'Esha Bhattacharjee Raghunathpur Nafar Academy' [(2013) 12 SCC 649] emphasizing a liberal approach in dealing with applications for condonation of delay. The Court highlighted the importance of substantial justice, non-pedantic approach, and the distinction between inordinate delay and a delay of short duration. The Court stressed the need for a careful scrutiny of facts and a reasonable explanation for delay, cautioning against concocted explanations and lack of bona fides.

Decision on Condonation of Delay:
The Tribunal observed an inordinate delay in re-filing the Appeal, which was not adequately explained by the Applicant. Despite Notices served and two paper publications, the Applicants did not appear before the Adjudicating Authority and failed to provide a satisfactory reason for the delay. The Tribunal concluded that the explanations offered were not sufficient causes to condone the delay, and therefore dismissed the Applications seeking condonation of delay in re-filing and filing of the Appeal.

Final Orders:
In light of the above findings, the Tribunal dismissed all the Applications seeking condonation of delay in various Appeals. Consequently, the Company Appeals related to these Applications were also dismissed. No costs were awarded, and all connected pending Interlocutory Applications were closed.