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TMI Blog2024 (11) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... ty had passed an Order permitting substituted service by Publication in the Newspapers. Notices were published in the 2 Newspapers. Adjudicating Authority passed an Order on 23.11.2023 holding that despite service of Notice by substituted mode, no one has appeared, and the Personal Guarantor is set an Ex-Parte. After the said Order, Section 95 Application was admitted by Order dated 26.02.2024. 3. This Appeal has been e-filed by the Appellant on 22.04.2024 with delay of 26 days. Appellant in his I.A. No.2971/2024 has prayed for following prayers: "1) Pass an Order for condonation of delay of 26 days in filing the Captioned Appeal; 2) Pass any other further order as this Appellate Tribunal may deem appropriate in the facts and circumstances of the instant case." 4. Notices were issued on delay condonation Application by Order dated 22.05.2024. A Reply to the delay condonation Application was filed. Rejoinder Affidavit has also been filed by the Appellant to the Reply filed by the Bank. Written Submissions has also been filed by the Parties. 5. We have heard Mrs. Ranjana Gavai, Learned Counsel for the Appellant and Ms. Ankita Bajpai for the SBI and Mr. Anand M. Mishra Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority being satisfied that Appellant has been served has decided to proceed Ex-Parte against the Appellant and admitted Section 95 Application. 8. We have considered the submissions of the Counsel for the Parties and perused the record. 9. In the present Application being I.A. No. 2971/2024 it has to determine as to whether the Appellant has made out the case for condonation of 26 days delay as prayed in the Application. The jurisdiction to condone the delay which is vested in this Tribunal is only 15 days as per Section 61(2) proviso, which is as follows: "61. Appeals and Appellate Authority. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal, but such period shall not exceed fifteen days." 10. Law is well settled that this Tribunal has no jurisdiction to condone delay beyond 15 days. The Hon'ble Supreme Court in the matter of `National Spot Exchange Limited.' Vs. `Anil Kohli, Resol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inconsistencies that may arise in the application of other laws. Section 61 IBC, begins with a non obstante provision- "notwithstanding anything to the contrary contained under the Companies Act, 2013" when prescribing the right of an aggrieved party to file an appeal before Nclat along within the stipulated period of limitation. The notable difference between Section 421(3) of the Companies Act and Section 61(2) IBC is in the absence of the words "from the date on which a copy of the order of the Tribunal is made available to the person aggrieved" in the latter. The absence of these words cannot be construed as a mere omission which can be supplemented with a right to a free copy under Section 420(3) of the Companies Act read with Rule 50 of the NCLT Rules for the purposes of reckoning limitation. This would ignore the context of IBC's provisions and the purpose of the legislation. 28. In this background, when timelines are placed even on legal proceedings, reading in the requirement of an "order being made available" under a general enactment (Companies Act) would do violence to the special provisions enacted under IBC where timing is critical for the workability of the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of 26 days delay in filing the Appeal. Our jurisdiction to condone the delay being only 15 days. 14. Learned Counsel for the Appellant has placed reliance on the Judgment of the Hon'ble Supreme Court in the matter of `Yallawwa (Smt.)' Vs. `Shantvva (Smt.)' reported in (1997) 11 SCC 159. In the above case, an Application under Order 9, Rule 13, Civil Procedure Code to set aside Ex- Parte decree obtained by husband was challenged, which decree was refused to be set aside by the Trial Court by dismissing Order 9 Rule 13 Application as time barred. The Hon'ble High Court on the revision allowed the Application holding that the above was fit case for condoning the delay in filing the Application under Order 9, Rule 13. The said Judgment of the High Court was challenged in the Appeal. Hon'ble Supreme Court in the above case in Paragraph 5 has laid down following: "5. We have carefully considered the aforesaid rival contentions. In order to appreciate the main grievance of the appellant against the impugned order of the High Court, it is necessary to note at the outset that the respondent was seeking to get the order of the trial court dismissing her application under Order IX Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it appears that almost automatically the procedure of substituted service was resorted to. It is also clear from the record of the case that the respondent being an illiterate lady would not have known about passing of the ex parte decree earlier otherwise she could have moved for setting aside the decree on any day prior to the day on which she filed this application. Sufficient cause was therefore, made out for condoning the delay in filing the application for setting aside the ex parte decree. The High Court, in our opinion, has rightly come to this conclusion which calls for no interference under Article 136 of the Constitution, when substantial justice has been done to the parties and opportunity has been given to the wife to contest the divorce petition which had terminated against her without giving any hearing to her." 15. Learned Counsel for the Appellant relied on the said Judgment to support her submission that substituted service has to be resorted as a last resort when Defendant cannot be served in the ordinary way and Court is satisfied that there is reason to believe that Defendant is keeping out of the way for the purposes of avoiding service or providing the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returned with remarks as "could not be served upon the petitioner/defendant Company due to non-existence at stated address". Therefore, as it is evident from the facts above, the petitioner/defendant company could not be served the amended plaint and the writ of summons of such plaint each time. 16. It is to be noted here that even when the service of writ of summons through Court as well as Registered Post was pending, the respondent/plaintiff company managed to get the suit transferred to the undefended list on February 04, 2019 itself. A suit may be transferred to as 'undefended suit' in terms of Chapter IX Rule 3 of the Rules of the High Court at Calcutta (Original Side), 1914 which is reproduced below as follows - "3. Where written statement is not filed, suit may be transferred to the Peremptory Undefended List. - Except as provided by Chapter X, rule 27, (a) where the written statement of a sole defendant is, or the written statements of all the defendants are, not filed within the time fixed by the summons, or within such further time as may be allowed, or (b) where one or more of several defendants has or have failed to enter appearance, and the other or others has ..... X X X X Extracts X X X X X X X X Extracts X X X X
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