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TMI Blog2024 (4) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... being beyond the pleadings. It would be too hypothetical to accept the arguments extended by the Learned Counsel for the Appellant that he had to seek legal advice and that his placement in Bengaluru had created an embargo in filing an Appeal in time. In fact, due to technological development, these two reasons seems to be without any plausible justification, which could be acceptable by this Tribunal to condone the delay of 28 days which has chanced in filing an appeal, hence as such the period is not extendable under the 2nd proviso of Section 61. Appeal dismissed. - [ Justice M. Venugopal ] Member ( Judicial ) , [ Justice Sharad Kumar Sharma ] Member ( Judicial ) And [ Jatindranath Swain ] Member ( Technical ) For the Appellant : Mr. Sriram Venkataravaradan , Advocate For the Respondent / Liquidator : Ms. Sangamithra Loganathan , Advocate For Mr. B. Dhanraj , Advocate ORDER ( Hybrid Mode ) [ Per : Justice Sharad Kumar Sharma ; Member ( Judicial ) ] : 1. This Company Appeal has been preferred by the Appellant, by invoking the provisions contained under Section 61 of the Insolvency and Bankruptcy Code, 2016, where there has been a challenge to the Impugned Order dated 17th Nove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Money Deposits by 21st October 2022 and the balance 75% of the Sale consideration was to be paid on or before 19th November 2022, as settled under the terms of invitation of bids. 5. It is contended by the Appellant, that all a sudden and without assigning any logical reasons and by way of a summary decision of the Respondent/Liquidator, certain dispute arose pertaining to the access to the auctioned property, which was alleged to have access through a common entrance and had also issued a letter in that regards to the respondent on 20th October 2022, requesting by the letter to provide clarification regarding the user of the common entrance to the auctioned property. It is contended by the Appellant that the Respondent/Liquidator, without providing the clarification as it was requested by the Appellant pertaining to the access of the auction property, the Liquidator had issued a letter whereby the Liquidator instead of giving any response, has on the contrary forfeited the EMD deposited by the Appellant on the ground of alleged non-payment of 25% of the sale consideration, within the prescribed time limit. It was thereafter that on 2nd of November 2022, the respondent had issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied for by the appellant only on 21st December 2023, and the same was made available by the Registry of National Company Law Tribunal, Chennai, on 5th January 2024. Hence, the appellant has preferred the instant Appeal by filing the same before the Registry of this Tribunal on 14th January 2024. The same was scrutinised on 17th January 2024 and the Registry of National Company Law Appellate Tribunal, had reported that the appeal was belatedly preferred by 28 days. 10. The Learned Counsel for the Appellant for the purpose of seeking of condonation of delay had filed IA No.90/2024, seeking to condone the delay which according to the computation made by the Appellant, it would be falling short by 14 days, which would be well within the ambit of Proviso to (Sub section 2) of Section 61. The ground for seeking condonation of delay has been provided by the Appellant, under sub para II of Para 3 of the Delay Condonation Application. To summarise the reasons given therein he contended, that he could not file the appeal within the 30 days for the reason given (i) appellant was situated at Bengaluru; (ii) he had to consume sufficient time for seeking legal advice (iii)he was restrained to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub Section 2 is not acceptable by this Court / Tribunal for the reason being that, because if the benefit if at all remotely it could be extended to the Appellant as contemplated under (sub Section 2) Section 12 of the Limitation Act, which would have been only when the appellant had applied for obtaining certified copy of Judgement dated 17th November 2023, had it been applied for well within the prescribed limit of Limitation, as provided under (sub-Section 2) of Section 61 i.e. within 30 days from the date of the Judgement. The logic behind is that the Appellant cannot take advantage of his own wrong, because that the appellant had chosen to apply for the certified copy, after the expiry of the initial period of limitation prescribed under (Sub Section 2) of Section 61, having applied for the same only on 21st December 2023, he cannot contend that the said period from 21st December 2023 to 5th January 2024, when he had actually received the certified copy has to be excluded is not an acceptable proposition by this Tribunal. 14. Apart from it, the contention of the Learned Counsel for the Appellant is not acceptable for the reason being that there was an apparent lack of dilige ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for filing of an appeal, as contemplated under the statue i.e. under (Sub section 2) of Section 61 herein, which could be set aside if the application is filed after the expiry of period of limitation, prescribed under statue, the benefit of exclusion of the period to procure the certified copy, would not be available to the Appellant to seek the benefit of (sub section 2) of Section 12 of the Limitation Act, as apparently he had applied much later. 18. On the contrary, the Counsel for the Respondent vehemently opposes the delay condonation application contending thereof that the propriety of arguments extended by the Learned Counsel for the Appellant cannot be accepted for the reason being, that the Hon ble Apex Court in a Judgement reported in 2023 SCC Online Supreme Court 1663 Sanjay Pandurang Kalad vs Vespara ICTL, has specifically laid down in its Para (18) that the Provisions of the National Company Law Tribunal Rules, 2016, there has had to be a clear-cut demarcation while interpreting the implications of Rule 115(1), which contemplates as to what would be considered would be the actual date of pronouncement, which is a mandate provided under law for preferring an appeal. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered in V. Nagarajan supra. 20. The Learned Counsel for the Appellant in sub para II of Para 3 of the Delay Condonation Application has given unjustifiable reason which were not even prevalent at the time when the period of limitation for preferring an appeal was actually subsisting. 21. That the counsel for the Appellant has endeavoured to argue certain grounds in support of the delay condonation application which are not even pleaded in the principal delay condonation application and if this be the situation his plea which is not taken and pleaded in defence for seeking condonation of delay cannot be considered by this Tribunal, since being beyond the pleadings. 22. It would be too hypothetical to accept the arguments extended by the Learned Counsel for the Appellant that he had to seek legal advice and that his placement in Bengaluru had created an embargo in filing an Appeal in time. In fact, due to technological development, these two reasons seems to be without any plausible justification, which could be acceptable by this Tribunal to condone the delay of 28 days which has chanced in filing an appeal, hence as such the period is not extendable under the 2nd proviso of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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