2024 (3) TMI 1142 - AT - Insolvency and Bankruptcy

Condonation of delay in filing appeals - relevant date would be the date of knowledge of order or not - Section 61(2) of IBC - HELD THAT - In the present case, the Impugned Order dated 24th April, 2023 was pronounced on 24th April, 2023 which is mentioned in the Impugned Order itself when order is pronounced by the Court the pronouncement is for all concerned - having already held that Hon ble Supreme Court in Safire Technologies Pvt. Ltd. 2022 (6) TMI 285 - SC ORDER laid down that commencement of the period of limitation for filing an appeal under Section 61 is not date when Appellant came to knowledge of the Order. The mere fact that Appellants claim that they were not aware of the process of CIRP nor they could file any claim in the CIRP cannot be a ground to permit the condonation of delay which is beyond condonable period. Ignorance of entire CIRP Process cannot be a ground to condone the delay which is beyond condonable period. From the facts brought on record by the parties, it is clear that several Appellants who had filed the Appeals against the Order dated 24th April, 2023 along with delay condonation applications which applications were rejected on the ground that delay was beyond 15 days. The order passed by this Tribunal rejecting similar applications filed by the other Appellants/Applicants cannot be ignored. There are no grounds made in these applications to condone the inordinate delay of 223/230 days in filing these Appeals - the delay condonation applications are dismissed.

Issues Involved:
1. Condonation of delay in filing appeals.
2. Challenge to the approval of the Resolution Plan by the NCLT.

Condonation of Delay in Filing Appeals:

1. I.A. No. 808 of 2024 and I.A. No. 1251 of 2024 have been filed praying for condonation of delay in filing these two Appeals.

5. In I.A. No. 808 of 2024, prayer is to condone the delay of 223 days in filing the Appeal.

6. In I.A. No. 1251 of 2024, prayer is to condone the delay of 230 days in filing the Appeal.

9. Learned Counsel for the Appellant in support of Delay Condonation Applications submits that Appellant being unaware of the Order, Appellant could not file and right to file appeal could arise only when Appellant came to know about the order. The limitation for filing the Appeal shall not commence from the date when order was passed by the Adjudicating Authority. In the facts of the present case the Appellants have filed the Appeal within condonable period of 15 days.

10. Learned Counsel for the Respondent refuting the submission of Learned Counsel for the Appellant submits that both the Appeals are highly barred by time. Appeals having been filed beyond condonable period need to be dismissed. It is submitted that the case of the Appellant that Appellant have no knowledge of the CIRP Process cannot give any benefit to the Appellant in the limitation for challenging the order which Appeal have been filed beyond 223/230 days delay. It is submitted that it is well settled that limitation shall commence from the date of the pronouncement of the Order.

12. The question as to whether Section 61(2) need to be interpreted to mean as to whether the period of 30 days shall commence from the date of knowledge of the Order has been dealt by Hon'ble Supreme Court in V. Nagarjan Vs. SKS Ispat and Power Limited & Ors. (2022) 2 SCC 244. Hon'ble Supreme Court has noted the provision of Section 421 of the Companies Act and statutory changes made in the scheme by Section 61. Hon'ble Supreme Court after considering the aforesaid provisions have clearly held that conscious deletion of words earlier occurring in Section 421 of the Companies Act i.e. from the date on which copy of the Order of the Tribunal is made available to the person makes clear that there is a clear departure in the IBC statutory scheme.

13. Learned Counsel for the Respondent has placed reliance in Judgment of Hon'ble Supreme Court in Safire Technologies Pvt. Ltd. Vs. Regional Provident Fund Commissioner & Anr. C.A. No. 2212 of 2021 where Hon'ble Supreme Court specifically rejected the submission that period of limitation would start from the date of knowledge.

14. Learned Counsel for the Respondent has also referred to Judgment of Hon'ble Supreme Court in National Sport Exchange Limited Vs. Anil Kohli, RP of Dunar Foods, 2022 11 SCC 761 where Hon'ble Supreme Court held that this Tribunal has also no jurisdiction to condone delay exceeding 15 days.

16. It is relevant to notice that this Tribunal in Raiyan Hotels and Resorts Pvt. Ltd. Vs. Unrivalled Projects Pvt. Ltd., C.A.(AT) Ins. No. 1071 of 2023 decided on 11.10.2023 has considered the similar submissions raised by the Appellant in support of the Delay Condonation Application filed along with the Appeal under Section 61. Judgment of the Hon'ble Supreme Court in D. Saibaba was also relied on which was noted and considered by this Tribunal in the said Judgment.

17. In the present case as noticed above, the Impugned Order dated 24th April, 2023 was pronounced on 24th April, 2023 which is mentioned in the Impugned Order itself when order is pronounced by the Court the pronouncement is for all concerned. We having already held that Hon'ble Supreme Court in Safire Technologies Pvt. Ltd. (supra) laid down that commencement of the period of limitation for filing an appeal under Section 61 is not date when Appellant came to knowledge of the Order.

24. We thus are satisfied that there are no grounds made in these applications to condone the inordinate delay of 223/230 days in filing these Appeals.

25. Both the delay condonation applications are dismissed. In result, the Memo of Appeals are rejected.

Challenge to the Approval of the Resolution Plan:

2. Company Appeal (AT) Ins. No. 138 of 2024 has been filed challenging the Order passed by the NCLT, Principal Bench, New Delhi dated 24th April, 2023 in I.A. No. 702/PB/2022 by which order, the Adjudicating Authority has approved the Resolution Plan of the Corporate Debtor-Sare Gurugram Pvt. Ltd. This Appeal has been e-filed on 25th January, 2024, there being delay in filing the Appeal, I.A. No. 808 of 2024 has been filed.

3. Company Appeal (AT) Ins. No. 367 of 2024 has been filed challenging the Order passed by the NCLT, Principal Bench, New Delhi dated 24th April, 2023 in I.A. No. 702/PB/2022 by which order, the Adjudicating Authority has approved the Resolution Plan of the Corporate Debtor-Sare Gurugram Pvt. Ltd. This Appeal has been e-filed on 09th January, 2024, there being delay in filing the Appeal, I.A. No. 1251 of 2024 has been filed.

7. I.A. No. 808 of 2024: The brief facts giving rise to this Application are:-

The Appellant Sumit Singh Basisth and Ms. Poonam Shatrughan Singh have filed C.A.(AT) Ins. No. 138 of 2024 challenging the Order of NCLT, Principal Bench approving the Resolution Plan of the Corporate Debtor Sare Gurugram Pvt. Ltd. by Order dated 24th April, 2023.

Appellants' case in the Application is that Corporate Insolvency Resolution Process against the Corporate Debtor commenced vide Order dated 09.03.2021 in pursuance of the admission order. IRP made a public announcement on 12.03.2021 called for number of claim from the creditors. Claims were filed. CoC was constituted. Form G was published thereafter EOI was received and in pursuance of RFRP Resolution Plans were received. Resolution Plan came to be approved by the CoC with 100% vote on 17.12.2021 the Resolution Professional filed an Application for approval of the Resolution Plan being I.A. No. 702 of 2022 which came to be approved by the Adjudicating Authority vide Order dated 24th April, 2023. The Appellant/Applicant filed this Appeal on 25th January, 2024. The ground in the Application is that Appellant were not aware of the CIRP of the Corporate Debtor and they came to know about the Order dated 24th April, 2023 only on 23rd November, 2023. The Appellant was added in WhatsApp group namely "Sare Shop Buyers Group' on 09.10.2023 and thereafter Appellant wrote an email on 18.10.2023 to the RP which was bounced back. After making further enquiries, RP vide email dated 23rd November, 2023 informed the Appellant about CIRP and about the Impugned Order hence this Appeal has been filed. The case of the Appellant further is that coming to know about the Order on 23rd November, 2023, Appeal was e-filed on 30th December, 2023 and hard-copy could be presented on 02.01.2024. It is submitted that Appellants are NRI who are residing outside the country.

8. I.A. No. 808 of 2024: This application prays for condonation of 230 days delay in filing the Appeal. C.A.(AT) Ins. No. 367 of 2024 has been filed on 09.01.2024. The Appellant's case in the Application is that in November, 2023 Appellant made an attempt to reach SRA vide Email dated 22nd November, 2023. It is only by email dated 25th November, 2023 and 27th November, 2023, Appellant came to know about the initiation of CIRP approval Order of the Adjudicating Authority dated 24th April, 2024. Appellant being unaware of the proceeding, could not file the Appeal.

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