TMI Blog2022 (12) TMI 917X X X X Extracts X X X X X X X X Extracts X X X X ..... ncumbent on this Tribunal to examine refiling delays with greater degree of caution. Any question of delay condonation must go through deep and sufficient scrutiny in the context of the Code. The circumstances cited for condonation of delay in re-filing has to be in consonance with the aims and objects of the Code and not frustrate the scheme of the Code. The natural corollary that follows is that condonation of delay in re-filing is not available just for the asking. This Tribunal needs to be fully satisfied that the delay was unavoidable and the applicant was consistently diligent in pursuing the matter. The question of condoning any delay in re-filing would have to be considered in the context of the plausible explanation given to show that the delay was on account of reasons beyond the control of the applicant and could not be avoided despite all possible efforts by the applicant. Addition of new facts in the course of refiling which could not have been a part of the original version of the Appeals when it was filed in November 2021 thereby changing the frame of the Appeals as a clever manoeuvre has also been alleged by the Respondents. Though the allegation made is serio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injustice has been caused to SEFL and its shareholders by the impugned order passed ex-parte by the Adjudicating Authority whereby SEFL was admitted under Section 227 of the IBC without any notice having been served on SEFL or its promoters or shareholders as required under law. It was further submitted that Reserve Bank of India, present Respondent No.1 after appointing SEFL, present Respondent No. 2 as an administrator under Section 45-IE of the Reserve Bank of India Act, 1934 moved the Adjudicating Authority for admission of SEFL into CIRP. A copy of the petition filed by Respondent No.1 under Section 227 was not served on the superseded Board of SEFL thus denying an opportunity to the Appellant to defend the matter on merits. Aggrieved by this impugned order, passed ex-parte by the Adjudicating Authority, the Appellant submitted that an appeal was filed challenging the impugned order before this Tribunal on 22.11.2021 well within the period of limitation as prescribed under the Code. 3. After the above memo of appeal was presented in the office of this Tribunal on 22.11.2021, after due scrutiny, defects therein were intimated to the Appellant on 24.11.2021. The Appellant th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e seeking relief thereunder. 6. The Learned Counsel for the Appellant further submitted that Rule 26(2) of the NCLAT Rules provides that if on scrutiny an application is found to be defective, the defects are required to be notified to the party for return, after due compliance within seven days, and, that if, there is failure to comply within seven days of the date of return the matter is to be placed before the Registrar who may pass appropriate orders. In the present case, appropriate orders are yet to be passed by the Registrar. As failure to comply to the directions to remove objections within seven days does not lead to an automatic dismissal of the appeal until the Registrar passes an order under Rule 26 (4), and in the present case no such order recommending dismissal having been passed by the Registrar, so far, the Respondents cannot rely on Rule 26 of the NCLAT Rules. 7. Strongly contending that raising of limitation grounds by government/public authority to defeat a just claim of a citizen is an unfair practice, the Learned Counsel for the Appellant placed reliance on the judgment of Hon ble Supreme Court in Madras Port Trust Vs. Hymanshu International (1979) 4 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant in refiling the appeal is almost the same time which is prescribed for completing CIRP under the IBC, the Learned Counsel for the Respondents vehemently asserted that any condonation of refiling delay of over 300 days would undermine the time-bound nature of CIRP under the Code. Furthermore, placing reliance on the judgement of the Hon ble Supreme Court in Ebix Singapore Private Ltd vs Committee of Creditors of Educomp Solutions Anr (2 SCC 401) it was submitted that allowing the belated refiling of the appeal particularly when CIRP is at an advanced stage in the present case, it would clearly vitiate the mandate for timebound resolution under the IBC. It was also submitted that the Hon ble Supreme Court in V. Nagarajan v. SKS Ispat and Power Ltd. And Others (2022 2 SCC 244) has denounced delay in filing litigation and held the power to condone delay to be tightly circumscribed and conditional only upon showing sufficient cause, which is glaringly amiss in the present case. Reliance was also placed on judgements of the Hon ble Supreme Court in National Spot Exchange Limited vs. Anil Kohli, 2021 SCC Online SC 716 and Oil and Natural Gas Corporation vs Joint Venture O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eful to go through the relevant NCLAT rules which have been pointed out by the Learned Counsel for the Appellant in this regard as extracted hereunder:- Rule 11: Inherent powers.- Nothing in these rules shall be deemed to limit or otherwise affect the inherent powers of the Appellate Tribunal to make such orders or give such directions as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Appellate Tribunal. ***** ***** ***** Rule14 : Power to exempt.- The Appellate Tribunal may on sufficient cause being shown, exempt the parties from compliance with any requirement of these rules and may give such directions in matters of practice and procedure, as it may consider just and expedient on the application moved in this behalf to render substantial justice. 15. There is no quarrel over the proposition that in the absence of any time-limit prescription in considering the question of delay in re-filing either in the Code or the NCLAT Rules, this Tribunal is to that extent not powerless to entertain an application even if there has been delay in re-filing. As a matter of general practice, it is commonplace that the yardstick ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiation of insolvency to liquidation, as a one-stop mechanism. It was also pressed upon by the Learned Counsel for the Respondent that the Hon ble Supreme Court in Ebix Singapore Private Limited v. Committee of Creditors of Educomp Solutions Limited Anr., 2022 2 SCC 401 has held that in the light of the prescribed time-limits under the IBC, the courts should proceed with caution in introducing any element in the insolvency process that may lead to unpredictability, delay and complexity not contemplated by the legislature. The overall purpose of specifying a stringent time frame under the Code has to be kept uppermost in mind and, in the present case too, this aspect weighs heavily on our mind. 18. Any question of delay condonation must go through deep and sufficient scrutiny in the context of the Code. The circumstances cited for condonation of delay in re-filing has to be in consonance with the aims and objects of the Code and not frustrate the scheme of the Code. The natural corollary that follows is that condonation of delay in re-filing is not available just for the asking. This Tribunal needs to be fully satisfied that the delay was unavoidable and the applicant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the Appellant can neither claim negative discrimination nor be entitled to blame the Respondents for denying them justice by pressing technicalities of refiling delay. This Tribunal has been given a latitude of a maximum of 15 days and not a day more for allowing condonation of delay beyond the statutory period of 30 days for filing an appeal as laid down in Section 61(2) of the Code. In the face of such a strict and stringent time regime with no exceptions having been allowed to be carved in giving any exemption beyond 15 days, allowing refiling delay for a period which is nearly close to one year and that too in the face of carelessness, inaction and negligence on the part of the appellant, to our mind, would be a gross distortion and thus impermissible. 21. The third cause for refiling delay has been attributed to the fact that the files got misplaced and that file reconstruction work was time consuming leading to delay. There is no averment in the application as to under what circumstances the file was lost and how it was eventually traced. Even if the file had got lost or misplaced, there is no averment as to what endeavours were made towards tracing out the file or what ..... X X X X Extracts X X X X X X X X Extracts X X X X
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