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TMI Blog2023 (10) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... FAR 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Interim Resolution Professional (IRP) and filed the Appeal on 15/10/2022 and therefore, the delay is neither wilful nor wanton and requires to be condoned, else the Impugned Order being devoid of merit would cause irreparable harm to the Applicant / Appellant. 3. Since all the Applications seeking condonation of delay in re-filing and filing of the Appeal deal with common facts, they are being disposed of by this common Order. 4. The Learned Counsel for the Applicant / Appellant strenuously contended that Notice was never received by the Applicant / Appellant herein and that an ex-parte Order was passed on merits and therefore, the Applicant / Appellant were unaware of the Impugned Order and sought for condonation of delay in both re-filing and filing of the Appeal. 5. The Learned Counsel for the Respondent argued that the Adjudicating Authority had ordered Notices to all the Parties on three occasions (with two paper publications) and Notices were delivered to Assori Narasimhan, Satyan Kasturi, Acolyte Soft Private Limited, Clean Switch India Private Limited and Enterprise Business Solutions Private Limited. The Learned Counsel for the Respondent drew our atten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hra Prabha . Additionally, the second service was sent to the Respondents through Speed Post on 26/11/2021 and proof of service was also filed before the Adjudicating Authority . The Notices sent to Badri Kasturi and Connect Wind (India) Private Limited, were returned with an endorsement Item Returned, no such person , though the address in this Appeal and the address to which the Notices were sent is one and the same. On 24/12/2021, the Liquidation Order was passed and on 17/02/2022 the Adjudicating Authority had directed for service of Notice to Badri Kasturi and Connect Wind (India) Private Limited, and PG Renewables through Paper publication which was effected on 27/04/2022. The final Impugned Order was passed on 01/09/2022 and it is the case of the Applicant / Appellant that Notice was received from the Liquidator on 13/09/2022. Section 61 of the IBC, 2016 referring to the limitation period for filing an Appeal reads as follows: 61. Appeals and Appellate Authority . (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: PROVIDED that the National Company Law Appellate Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. 21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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