TMI Blog2024 (2) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... erred, for the opposite party, cannot claim to have vested right in justice being denied to him / them, because of a non-deliberate delay. There cannot be any presumption or assumption that the delay as occasioned, wantonly, or on account of culpable negligence or on account of malafides - refusing to condone the delay can even result in a meritorious matter being thrown out at the early stage and cause of justice being defeated. Also that, when the delay in question is condoned, the highest thing that can happen is that the case will be decided on merits after hearing the parties. This Tribunal on a careful consideration of respective contentions, on going through the facts and circumstances of the instant case comes to a cocksure conclusion that the delay of 18 days in preferring the instant Appeal has occurred on account of the indisposition of the 2nd Appellant, the authorised signatory of the 1st Appellant. Furthermore, on 01.05.2023, five days before the expiry of limitation period, the 2nd Appellant / MD and the authorised signatory of the 1st Appellant underwent tooth extraction, tooth implant etc. and the two weeks period came to an end of 14.05.2023 and the fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant to instruct the Learned counsel, in regard to the preferring of the instant Appeal and other ancillary applications within the period of 45 days specified in Section 421(3) of the Companies Act, 2013. 4. The Learned counsel for the Appellants takes a stand that the condonation application dated 24.05.2023 appears as a Defected document, on the Data Management System , an application used by this Tribunal to see the status of e-filed pleadings. 5. Further, according to the Appellants/Petitioners, the Petitioners/Appellants after rectifying the defects within seven days time, in terms of Rule 26 (2) of the NCLAT Rules, 2016 had re-filed the Appeal Papers with the condonation of delay application on 31.05.2023 and the status of the said application on 31.05.2023 was shown as Defect Free on the Data Management System . 6. The Learned counsel for the Petitioners/Appellants relies on the decision of the Hon ble Supreme Court in Collector Land Acquisition, Anantnag V. Katiji (1987) 2 SCC at Page 107 wherein it was observed that Courts must take a justice oriented approach in condoning the delay in institution of matters before Courts. Besides, this the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Senior Counsel submits that the 1st Respondent opposes the IA No.2612/2023 (condone delay application) based on the reasons. (i) the Appellants have exhibited sheer disregard to the process of law and dubiously altered their stand in the pre-defect application e-filed on 24th May, 2023 (which forms part of the judicial record) and the final copy of the application placed before this Hon ble Tribunal on 30 May, 2023 (post curing defects). The application deserves dismissal on this count alone; (ii) Such a conduct of the Appellants of raising false averments on oath, ought not be condoned much less with imposition of cost in so far as the same would tantamount to setting an incorrect precedent by this Hon ble Appellate Tribunal; (iii) In any event, the Appellants have failed to demonstrate/disclose sufficient grounds for seeking condonation. 13. The Learned Senior counsel for the 1st Respondent points out that the Appellants had e-filed the captioned Application on 24.05.2023, a copy of which was served upon the Respondents and in the said e-filing version, the alleged grounds, pleaded by the Appellants for the delay in captioned Appeal was i) The alleged non-av ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e manner only to mislead this Tribunal into passing a favourable order further when a person/party is curing defects. It is only rectifying the defects, pointed out by the Registry of this Tribunal and not changing/modifying the contents of its plea. 17. It is represented on behalf of the 1st Respondent that in its Rejoinder , the Appellants have pleaded that such an e-filed application, does not form part of Record and cannot be relied upon. Further the conduct of the Appellants ought not to be condoned much less with an award of costs (which would not be suffice, given the strange facts of the instant case). In so far as allowing the instant Application would not only amount to allowing the complete lackadaisical and recalcitrant approach shown by the Appellants in preferring the Application and the accompanying Appeal but would also amount to setting an incorrect precedent. 18. According to the 1st Respondent the purported reasons , projected by the Appellants/Petitioners do not constitute sufficient cause/reasons or adequate and bonafide reasons, for the condonation of delay as per Section 421(3) of the Companies Act, 2013. 19. Moreover, according to the 1st Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 20. We now proceed to test the conduct of the applicant on the anvil of whether the applicant acted with due diligence and dispatch. From the submissions and pleadings made by the Appellant, three grounds have been cited for the delay. The first ground raised has been the ill-health of the authorised representative. This has been contested by the Respondents on the grounds that the ill-health of one representative of the company cannot be a justified reason for having stalled the refiling of the appeal for 321 days and that the company could have authorised any other representative to undertake the re-filing of the Appeals. We also note that apart from a general statement, no proof of illness has been placed on record. Furthermore, there is substance in the argument raised by the Respondents that the Company could always have deputed another author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assigned for delay in filing the appeal. Under provision contained in Section 421 an appeal is to be filed within 45 days, however if further after expiry of 45 days appeal is not filed, then thereafter this tribunal is not competent to entertain the appeal. However, if during extended within 45 days, a party in a position to satisfy the court regarding the reasonable ground for delay, this court may entertain such petition. Considering the statement made in the condonation petition, we are not satisfied that any plausible explanation has been given for delay in filing the appeal. Normally, in condonation of delay application, it is required on the part of the party to explain day to day delay, however, in the present application no such explanation has been given and as such we don t find any ground to condone the delay. The appeal stands dismissed on the ground of limitation itself. 26. The Learned counsel for the 1st Respondent adverts to the decision of this Tribunal dated 26.07.2023 in Principal Commissioner of Customs V Mr. Rajendra Prasad Tak Company, Company Appeal (AT)(CH)(Ins) No.218/2023 wherein at para 11 it is observed as under:- 11. It is pertinent to mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asad Properties Investments Pvt Ltd wherein at para 8 it is observed as under:- 8. Be that as it may, the Appellant then took further period of 15 days i.e. the appeal has been filed on the last day of the extended period of 15 days without giving any cogent reason for not preferring the appeal within the statutory period or even before that. The only reason given is that after she came to know the impugned order dated 22.03.2023 on 26.03.2023, she collected relevant documents and filed the appeal. The reason assigned in this application is not at all sufficient for the purpose of condonation of delay and it appears to us that the Appellant is not taking the period, within which the appeal is to be filed, seriously rather it appears that there is a perception that the condonation of delay is a matter of right. 28. The Learned counsel for the 1st Respondent falls back upon the decision dated 24.08.2023 between People s all India Anti-Corruption and Crime Prevention Society (IP) V. Usha International Ltd Ors wherein at para 16 to 18 it is observed as under:- 16. This question has been answered by the Tribunal which is reproduced as under: The limitation presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent refers to the order dated 05.09.2023 in DS Kulkarni Associates V. Manoj Kumar Aggarwal, company appeal (AT)(Ins) No.924 of 2023 wherein at para 7 it is observed as under:- 7. Section 61(1) provides a right of appeal to a person aggrieved by the order of the Adjudicating Authority. Section 61(2) further provides a period of 30 days for filing the Appeal before the Appellate Tribunal under Section 61(1) of the Code. In case, the Appeal is not filed within the prescribed period of 30 days, proviso to Section 61(2) provides for a period of 15 days within which the Appeal can be filed satisfying the Appellate Authority that there was sufficient cause for not filing the Appeal earlier. However, the period of 15 days cannot be extended and the Appellate Tribunal does not have jurisdiction to consider and condone the delay beyond the period of 15 days and in case the Appellate Authority is satisfied that there has been a sufficient cause for not filing the Appeal within the time prescribed or within the extended period, it can condone the delay and hear the matter on merits. Therefore, sufficient cause is the heart and soul of the application for condonation of delay which is tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 01.08.2023 and received the same on 10.08.2023, therefore, the period of 10 days deserves to be excluded in terms of the Section 12 of the Act, 1963. Secondly, the Appellant has not even applied for the certified copy (paid copy) at all in filing of the appeals and even one application has been filed i.e. I.A. No. 1118 of 2023 for dispensing with the filing of the certified copy. Thirdly, the Appellant has taken totally a new stand in the application for condonation of delay when an objection was raised by the Respondents that the appeal is not within the period of limitation. In the application filed for condonation of delay, the ground taken is that the limitation is to be counted from the date when free certified copy was made available in so far as the first appeal is concerned whereas no such plea has been taken in so far as the second appeal is concerned in which the averment has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of condoning the delay. Although the limitation to challenge the impugned order started w.e.f. 03.03.2022 but even if it is presumed that the Appellant was pursuing its other remedy to challenge the order of exparte itself and had remained unsuccessful till the Hon ble Supreme Court when its Civil Appeal was also dismissed on 06.04.2023 and the period of limitation is to be counted from 06.04.2023, the period of 30 days for the purpose of filing of this appeal had expired on 06.05.2023. If 15 days more are added which are prescribed under Section 61(2) proviso then the period of 45 days would have expired on 21.05.2023 whereas the present appeal has been filed on 22.05.2023, even after the expiry of period of 15 days as well which cannot be condoned in any manner in view of the decision of the Hon ble Supreme Court in the case of National Spot Exchange Limited (Supra). 13. Looking from any another angle, even if it is taken then that the appeal has been filed on 15th day of the extended period of 15 days even then there is no sufficient cause assigned by the Appellant as to why it had taken exactly 45 days in filing the appeal against the order dated 03.03.2022. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there was no concealment on Appellants/Petitioners part, relating to the reason for delay in filing the captioned Appeal. 40. According to the Petitioners/Appellants, the 1st Respondent is endeavouring to take focus from the main issue in the captioned Appeal i.e. impleadment of Respondent No.4 i.e. Mr. Jaikishan Bhagchandka in the Company Petition No.74/2022 instituted by the Respondent No.1 herein titled as Preeti Bhagchandka V Negolic India Ltd and Ors which is pending before the NCLT, New Delhi. 41. According to the Petitioners/Appellants, on 01.05.2023 the authorised signatory of the Appellant No.1 was advised bed rest for two weeks viz. till 14.05.2023, owing to Tooth Extraction, Tooth Implants and Root Canals. Further, the impugned order was passed on 22.03.2023 in IA No.206/20222 in CP No.74/2022 and the limitation period of 45 days mentioned in Section 421 (3) of the Companies Act, 2013 for preferring an Appeal expired on 06.05.2023. That apart, the Authorised signatory of the 1st Appellant, was unavailable for executing the Appeal and the Application seeking condonation of delay in filing the Appeal as, he was advised bed rest (vide the medical prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and authorised signatory of the 1st Appellant was unwell during this period. Moreover, the 2nd Appellant had recovered from illness in the 2nd week of May, 2023 and was able to execute the instant Appeal and other ancillary applications. Therefore, it was not possible for the 2nd Appellant to instruct Advocate with regard to the preferring of the Appeal and ancillary applications within 45 days period mentioned in Section 421(3) of the Companies Act, 2013. 47. The 1st Respondent has taken a contra stand that the Petitioners/appellants have exhibited sheer disregard to the process of law and dubiously altered their stand in the pre-defect application, e-filed on 24.05.2023 and the final copy of the application was placed before this Tribunal on 30.05.2023 (post curing defects) and that apart, the Appellants/Petitioners have failed to disclose sufficient reasons for seeking condonation of delay . 48. According to the 1st Respondent, the indisposition plea qua the alleged tooth extract (as averred by the Appellants in its Rejoinder to the Reply to the application is purely an after thought ) of the authorised representative would not cause a sufficient ground for seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation which cost must be substantial as per decision in Gokulnanda Mohanti V. Ramibala Mohanty, 1998 1 CCC 495 vide para 9. 53. In respect of short delays concerning condonation, there is no ambit to impute any inaction or negligence or lack of bona fide as per decision in LIC V. BA Brothers (Eastern) Ltd, Indian Civil Cases 5 (Cal). Moreover, the determining factor is whether there is plausible or reasonable explanation for the delay in question, in filing the Appeal. 54. What counts is not the length and breadth of delay. The Tribunals are meant for imparting justice and not to scuttle justice . Indeed the power of condoning the delay , is to be considered by the concerned Court/Tribunal in consonance to the circumstances encircling the consideration of delay, in each respective cases. 55. Where the delay in preferring an Appeal/Restoration Application/Review etc. is not wanton or intentional, the Court would not be justified in rejecting the delay condonation application on the basis that the Applicant had not produced a medical certificate, to show that he/she was ill and the Doctor had advised him/her to take rest, as per decision in Marry Susheela V. Shalee K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Sterling Dental Clinic dated 01.05.2023 was produced in respect of Mr. Mahesh Bhagchandka(the 2nd Appellant and MD of Appellant No. 1) which indicates that the 2nd Appellant and MD of Appellant No. 1 was under treatment for extraction of 31,34,41 and the patient was advised to rest and stay at home for two weeks, and in any event the delay of 18 days in the present Appeal is satisfactorily explained on the side of the Petitioners / Appellants, as sufficient/bonafide cause, and when no negligence or inaction nor want of bonafides is attributable to a party for the delay in filing a remedy, then, it certainly constitute a sufficient cause in the present Appeal as held by this Tribunal. 59. Be that as it may, this Tribunal on a careful consideration of respective contentions, on going through the facts and circumstances of the instant case comes to a cocksure conclusion that the delay of 18 days in preferring the instant Appeal has occurred on account of the indisposition of the 2nd Appellant, the authorised signatory of the 1st Appellant. Furthermore, on 01.05.2023, five days before the expiry of limitation period, the 2nd Appellant / MD and the authorised signatory of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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