9911796707
TMI Blog2024 (1) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... plans and further to stay the voting results of the resolution plan, which is put for voting pending disposal of the application filed by the Applicant has been dismissed and the second appeal has been filed by the Appellant because the application filed by the RP of the Corporate Debtor for approval of the resolution plan submitted by SRA was approved. Both the appeals have been filed on 28.08.2023. The first Appeal has been filed with the free certified copy made available on 01.08.2023 whereas the second appeal has been filed with a copy of order which is alleged to have been shared by the RP on 07.08.2023. Three issues emerges in this case, firstly, the Appellant is guilty of suppressio veri and suggestio falsi who has made a totally wrong averments in para 6 and 17 of the grounds of appeal which has been declared and verified to be correct and also filed an affidavit in support of it because, firstly, the appeal is not within the limitation though a declaration is made in para 6 of the grounds of appeal that the Appeal is within the period specified in Section 61 of the Code and secondly the Appellant has obtained the certified copy (paid copy) applying the same for it on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.07.2023 by which an application filed by A Rajendra, shareholder and suspended managing director of Dharti Dredging and Infrastructure Ltd. (Corporate Debtor), under Section 60(5) r/w Section 35(1)(n) of the Insolvency and Bankruptcy Code, 2016 (in short Code ), seeking a direction to the Respondent therein to place the resolution plan submitted by the him before the CoC for consideration alongwith other resolution plans and further to stay the voting results of the resolution plan, put up for voting pending disposal of the application filed by the Applicant, bearing I.A. No. 407 of 2023 filed in CP (IB) No. 329/7/HDB/2020, has been dismissed. 3. The second appeal has arisen from the order dated 20.07.2023 by which an application filed by Madhusudhan Rao Gonugunta, Resolution Professional (In short RP ) of the Corporate Debtor, under Section 30(6) and 31(1) of the Code r/w Regulation 39(4) of the IBBI (Insolvency resolution process for corporate persons) Regulations, 2016 (in short Regulations ), for approval of the resolution plan dated 10.01.2023, of consortium of Yogayatan Ports Pvt. Ltd. and Dr. Rajendra Raja Bali Singh (SRA) has been allowed. This order has been passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .08.2023 i.e. the date until when the knowledge of the contents of the order were not known to the Appellant are excluded as sufficient cause then the appeal is maintainable having been filed on the 40th day from the date of pronouncement of the order. It is further submitted that non-filing of an application for condonation of delay alongwith appeal is not fatal as it is a curable defect. The application for condonation of delay, if it is found or pointed out that the appeal is filed with delay, can be cured later on and in this regard, reliance has been placed on a decision of the Hon ble Supreme Court in the case of State of M.P. Anr. Vs. Pradeep Kumar, (2000) 7 SCC 372. Counsel for the Appellant has further admitted that the paid certified copy has not been applied by the Appellant. It is submitted that even if the period of 30 days had expired, the appeal has been filed with condonation of delay application on the 40th day. 7. Counsel for the Appellant, in the application bearing I.A. No. 1316 of 2023, filed in the second appeal has also taken the same stand but in this case, it is submitted that the appeal has not been filed with the free certified copy made available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certified copy was made available to him on 01.08.2023 on the basis of which the appeal has been filed, therefore, a period of 10 days, spent from 20.07.2023 when the order was passed till 01.08.2023 when the free certified copy was made available should not be included in the period of limitation. It is nowhere mentioned in the applications for condonation of delay that the Appellant had applied for certified copy (paid copy) on 01.08.2023 and received the same on 10.08.2023 and therefore, the said period should be excluded. It is argued that the Appellant has not even come to the court with clean hands because the Appellant has admitted in both the cases that he has not applied for certified copy at all. It is further submitted that if this is the position that certified copy has not been applied at all then the averments made in Para 17 of the grounds of appeal for which declaration has been made and verification has been done is simply an act of overreaching the Court and on this ground alone the application deserves to be dismissed. It is further submitted that the Appellant in second appeal has filed I.A. No. 1316 of 2023 and alleged that the copy of the order was shared wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2023. The first appeal has been filed when the application filed by the Appellant for seeking direction to the Respondent therein to place the resolution plan submitted by the Applicant before the CoC for its consideration alongwith other resolution plans and further to stay the voting results of the resolution plan, which is put for voting pending disposal of the application filed by the Applicant has been dismissed and the second appeal has been filed by the Appellant because the application filed by the RP of the Corporate Debtor for approval of the resolution plan submitted by SRA was approved. Both the appeals have been filed on 28.08.2023. The first Appeal has been filed with the free certified copy made available on 01.08.2023 whereas the second appeal has been filed with a copy of order which is alleged to have been shared by the RP on 07.08.2023. Section 61 of the Code deals with the appeals and appellate authority which is reproduced as under:- Section 61. Appeals and Appellate Authority. (1) Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 10.08.2023 as stated and no certified copy has been appended with the grounds of appeal as well even after it has been filed. The question would thus arise as to why the Appellant has made false averments in the grounds of appeal? The averment made in the grounds of appeal are further declared to be true and also that nothing has been suppressed and concealed and an affidavit has been filed in support of the appeal. In para 2 of the affidavit, he has averred that the contents of the accompanying appeal are true and correct to his knowledge and belief as also derived from the records of the company and in the affidavit it is also verified that the declaration of the contents of the affidavit are true and correct. However, in the application filed for seeking condonation of delay, the Appellant took a summersault and changed the entire case alleging that the first appeal has been filed with the free certified copy and the period of limitation is to be counted from the date when the free certified copy is made available and not from the date of pronouncement of the order i.e. 20.07.2023. In so far as the delay of 10 days is concerned, no sufficient reason has been given as to why ..... X X X X Extracts X X X X X X X X Extracts X X X X
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