The Chennai bench of the National Company Law Appellate Tribunal ( NCLAT ) dismissed an appeal under Section 61 of the Insolvency and Bankruptcy Code ( IBC ), 2016 and refused to condone delayed application. It was observed that non-Compliance with limitation period under section 61 of IBC.
The appeal was filed by the Southern Power Distribution Company of Telangana Ltd. against Kalvakolanu Murali Krishna Prasad (Resolution Professional for Vaksh Steels Pvt. Ltd.,). It was viewed that the appellant cannot file an application for condonation of delay as it was duly aware of the proceedings well before the expiration of the time and as a result not acting within the prescribed time-period does not allow it to file for condonation of delay.
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The appeal arises out of the order passed in the company petition under the Insolvency and Bankruptcy Code, 2016 (IBC). The appellant was duly informed of the case and had not made an application for a certified copy of the same within the stipulated time. The window for the same was up to 1st March 2020.The appellants main contention was that it was not aware that the case had progressed and as a result could not make an application for a certified copy on time.
However, emails of the Appellant reflected that it was aware of the case long before the crossing of limitation period. It was on 4th August, 2021 that this application for condonation of delay had been filed after which appeal had been preferred on May 28, 2021, making it much more beyond the prescribed limitation period under Section 61 of the IBC.
The appellant relied on the Suo Moto orders of the Supreme Court for extending the period of limitation in the wake of COVID-19 pandemic.The tribunal stated that the orders would not be of any use this case and cannot be applicable because the appellant did not take due diligence nor it acted diligently during the period of limitation and therefore, the same application for condonation of delay was dismissed and the appeal for was declared to be barred by limitation.
The appellants main argument from the starting of the case is that it was not part of the original proceedings and has not been aware of the progress of the case. It was also argued by the appellant that he would be barred from being considered as a party to the proceeding under Section 21(2) of the IBC Code. The appellant stated that even though appellant participated in the CoC meetings, the mere presence of the same cannot be considered same as being party to the proceedings.
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The Resolution Professional who contended that the appellant was indeed aware of the proceedings as it is clearly visible from emails that are originating from the appellant’s email address. Another contention put forward was that the appellant having participated in the Coc meetings, had sufficient knowledge of the ongoing proceedings and the lack of claim of knowledge was not valid. It was appellants duty to apply for a certified copy of the judgement within prescribed period and failure to do so barred the appeal.
The bench comprising of Justice Sharad Kumar Sharma, Member (Judicial) and Shri Jatindranath Swain (Technical Member),dismissed the application of the Appellant for condonation of delay in filling the appeal. It was found that the appellant was aware of the proceedings well before the expiration of the time and as a result not acting diligently to get a copy of the judgement within the prescribed time-period under Section 61 of the IBC does not allow it to file for condonation of delay.
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