Regional Provident Fund Commissioner Vs Mr. Vasudevan Resolution Professional & Liquidator of M/s. Titanium Tantalum Products Limited (NCLAT Chennai)
Held that an unpardonable lackadaisical approach/ attitude of the `Party’ in pursuing a matter before the `Competent Authority’ / `Tribunal’ is not to be accepted. Delay not condoned in such case even if the appellant being statutory organization.
Facts-
M/s. Titanium Tantalum Products Limited (Corporate Debtor) had undergone CIRP and subsequently an order for liquidation was passed on 12.06.2018. The Liquidator (Respondent) had issued a public announcement that the last date for submission of claims was 14.07.2018. The Regional Provident Fund Commissioner of the Employees Provident Fund Organization (Appellant), which is a Government functionary, submitted its claim amounting to Rs. 3,09,88,511/- on 02.02.2021 i.e. after 936 days of delay. The Liquidator rejected the Appellant’s delayed claim while stating that the liquidator had no power to condone the delay.
Accordingly, the Appellant filed an application before the NCLT Chennai Bench seeking condonation of delay of 936 days in claiming the dues under Employee’s Provident Funds and Miscellaneous Provision Act, 1952. The Appellant further sought a direction to the Resolution Professional/Liquidator to make provision in the Information Memorandum and corresponding Resolution Plan, if any, for the payment of Claim of Rs. 3,09,88,511/- due to the Appellant.
However, NCLT held that delay cannot be condoned. Hence, being aggrieved, the appellant preferred present appeal before NCLAT.
Conclusion-
An unpardonable lackadaisical approach ! attitude of the `Party’ in pursuing a matter before the `Competent Authority’ / `Tribunal’ is not to be accepted. The `Law of Limitation’ being harsh, will affect a `Litigant’, but it has to be pressed into service with all its vigour and rigour in the considered opinion of this `Tribunal’.
In `Law’, a `Tribunal’! a `Court of Law’ has no power to find out a device in granting `Relief’ to a `Party’ who may appeared to have been hard done by. To put is precisely, an `Application’ for condonation of delay undoubtedly create a `jurisdictional fetter’ against `consideration of tangible ! substantive matter on merits’. A `Tribunal’ cannot determine the `sufficiency of cause’, apart from the facts pleaded and made out in a given case.
Just because the Appellant is a Statutory Organisation, no `indulgence’ or `latitude’ can be shown, since the `Law’ applies to one and all in a level playing field.
FULL TEXT OF THE NCLAT JUDGMENT/ORDER
According to the Learned Counsel for the Petitioner/Appellant in I.A. No. 415 of 2022 in Company Appeal (AT) (CH) (INS) No. 182 of 2022, there has occasioned a delay of 116 days in preferring the Instant Company Appeal before this `Tribunal’ and in fact the instant `Appeal’ ought to have been filed within 90 days as per the `Order’ of the Hon’ble Supreme Court of India in M.A. No. 21 of 2022 in M.A. No. 665 of 2021 in SMW (C) No. 3 of 2020 vide order dated 10.01.2022, a fresh period of limitation of 90 days was granted from 28.02.2022 and that the instant `Appeal’, since it is filed within the limitation, the condonation of delay application I.A. No. 415 of 2022 in Comp. App. (AT) (CH) (INS) No. 182 of 2022 is to be allowed, in the interest of justice.
2. It is evident that the `impugned order’ in IA/442/CHE/2021 in TCP/413/IB/CB/2017 was passed by the `Adjudicating Authority’, (National Company Law Tribunal), Division Bench, Court – I, on 17.12.2021, and that the copy of the `impugned order’ was obtained by the `Petitioner / Appellant’ on the same day.
3. As a matter of fact, the instant `Appeal’ is to be filed within 30 days as per the I & B Code, 2016. In this connection, the `Appellant’ adverts to the `Order’ of Hon’ble Supreme Court of India in M.A. No. 21 of 2022 in M.A. No. 665 of 2021 in Suo Moto Writ Petition Civil No. 3 of 2020 dated 10.01.2022, thereby and whereunder at Paragraphs 5 and 6, it is observed as under:
5. ̏Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions:
I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.
II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022.
III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.
IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
6. As prayed for by learned Senior Counsel, M.A. No. 29 of 2022 is dismissed as withdrawn.”
4. Considering the fact that the `Petitioner / Appellant’ in I.A. No. 414 of 2022 in Comp. App. (AT) (CH) (INS) No. 182 of 2022 places reliance on the Order of the Hon’ble Supreme Court of India in M.A. No. 21 of 2022 in M.A. No. 665 of 2021 in Suo Moto Writ Petition (C) No.3 of 2020 dated 10.01.2022 and in cases where the limitation would have lapsed in respect of the period from 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation, all persons shall have a limitation of 90 days period from 01.03.2022, etc., the instant Comp. App. (AT) (CH) (INS) No. 182 of 2022, preferred by the `Petitioner/Appellant’ before this `Tribunal’, is well within the limitation and only as a matter of abundant care and caution, the `Petitioner/Appellant’ has projected I.A. No. 415 of 2022.
5. Viewed in the above perspective, this `Tribunal’ in furtherance of substantial cause of justice, allows I.A. No. 415 of 2022 (condone delay application) in Comp. App. (AT) (CH) (INS) No. 182 of 2022. No Costs.
JUDGMENT
(Virtual Mode)
Comp. App. (AT) (CH) (INS) No. 182 of 2022:
Introduction:
6. The Appellant has focussed the instant Comp. App. (AT) (CH) (INS) No. 182 of 2022, as an `Affected Person’, on being dissatisfied with the `impugned order’ dated 17.12.2021 in IA/442/CHE/2021 in TCP/413/IB/CB/2017, passed by the `Adjudicating Authority’ (National Company Law Tribunal), Division Bench, Court – I, Chennai.
7. According to the Learned Counsel for the Appellant the `Adjudicating Authority’ (National Company Law Tribunal), Division Bench, Court-I, Chennai, while passing the `Order’ in IA/442/CHE/2021 in TCP/413/IB/CB/2017, filed by the `Appellant / Applicant’, wherein at paragraphs 4 to 10, had observed the following and dismissed the IA/442/CHE/2021, without costs:
4. ̏Vide an Order dated 12.06.2018 this Tribunal ordered for liquidation of the Corporate Debtor and the Respondent was appointed as the Liquidator. The Liquidator had issued paper publication inviting the claim from the stakeholders on 18.06.2018. This late date for submission of such claim was 14.07.2018. In response to the public announcement the following claims were received from different stakeholders.
