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2023 (12) TMI 1074 - AT - Insolvency and BankruptcyMaintainability of appeal on the ground of time limitation - HELD THAT - The present appeal is directed against the order dated 06.12.2022 and filed on 04.02.2023. The period of 30 days, as prescribed under Section 61(2) of the Code, counted from 06.12.2022 expired on 05.01.2023 and further period of 15 days expired on 20.01.2023 whereas the appeal has been filed on 04.02.2023. It is pertinent to mention that the impugned order was not passed dismissing the application for non-prosecution rather the impugned order was passed dismissing the application having been rendered infructuous, therefore, the period of limitation would start from the date of order 06.12.2022 in view of the decision of the Hon ble Supreme Court in the case of V. Nagrajan Vs. SKS Ispat and Power Ltd. Ors. 2021 (10) TMI 941 - SUPREME COURT . The appeal having been filed even after the expiry of further 15 days prescribed under Section 61(2) proviso, is not maintainable in view of a decision of the Hon ble Supreme Court rendered in the case of National Spot Exchange Limited Vs. Anil Kohli 2021 (9) TMI 1156 - SUPREME COURT . This appeal has been filed beyond the period of limitation and not maintainable, the Corporate Debtor has already been sold as going concern subsequent to the order dated 19.01.2023 passed in 1018 of 2022 and thereafter the change in the management has taken effect and the sale proceeds received from such sale have also been distributed to the stakeholders. There is hardly any merit in the present appeal which is otherwise barred by limitation and hence, the same is hereby dismissed.
Issues involved:
The issues involved in the judgment are the dismissal of an application under Section 7 of the Code, adoption of swiss challenge method for sale of a Corporate Debtor, approval of sale of the Corporate Debtor as going concern, challenge against the order for approval of sale, dismissal of application for restoration, and the maintainability of the appeal filed beyond the period of limitation. Dismissal of Application under Section 7 of the Code: Phoenix ARC Pvt. Ltd. filed an application under Section 7 of the Code against the Corporate Debtor, which was admitted and the liquidator was appointed. Subsequently, the Liquidator sought adoption of the swiss challenge method and the adoption of proposal -A as the base price for the sale of the Corporate Debtor as a going concern. The application for approval of the sale was allowed, and the liquidator was directed to disburse the consideration paid by the purchaser as per Section 53 of the Code. Challenge against the Order for Approval of Sale: The present appellant challenged the order approving the sale, contending that their offer was more beneficial to the stakeholders committee and the economy compared to the purchaser's offer. Despite seeking leave to appeal, the appellant's application was dismissed, leading to the dismissal of the appeal as well. Dismissal of Application for Restoration: Following the dismissal of the initial application, the appellant filed an application for restoration, which was subsequently dismissed as infructuous since the subject matter of the application had already been disposed of. The court noted the appearance of counsels for both parties and disposed of the application accordingly. Maintainability of the Appeal Filed Beyond the Period of Limitation: The present appeal was filed against an order that rendered the previous application infructuous. However, the appeal was filed beyond the prescribed period of limitation, making it not maintainable as per the decision of the Hon'ble Supreme Court. Additionally, the Corporate Debtor had already been sold as a going concern, the management changed, and the sale proceeds were distributed to stakeholders, further diminishing the merit of the appeal, which was dismissed without any order as to costs. This summary provides a detailed overview of the judgment, highlighting the key issues and outcomes of the case.
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