Delhi High Court
Mr. Vineet Khosla vs M/S Edelweiss Asset ... on 21 December, 2020
$~27
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 21.12.2020
+ CM(M) 647/2020 & CM APPL.33938-39/2020
MR. VINEET KHOSLA ..... Petitioner
versus
M/S EDELWEISS ASSET RECONSTRUCTION COMPANY LTD.
& ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner: Mr. Deepak Khosla, Advocate.
For the Respondent: Mr. Mr. Abhishek Anand and Mr. Viren Sharma,
Advocates for R-2, 4 & 5.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J. (ORAL)
1. The hearing was conducted through video conferencing.
2. Petitioner impugns order dated 15.10.2020 whereby a liquidator
has been appointed and the company has been directed to be
liquidated, consequent to an order of admission dated 15.03.2019.
3. It is contended by the learned counsel for the petitioner that
order dated 15.10.2020 is without jurisdiction as the proceedings were
initiated beyond limitation.
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:22.12.2020 09:38:01 CM(M) 647/2020 Page 1
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
4. Learned counsel submits that an application being CA
No.307/2020 had been filed on 02.01.2020, prior to the passing of the
subject order dated 15.10.2020 and the Tribunal without adjudicating
on the application seeking recall of the order of admission has passed
the subject order appointing a liquidator and directing liquidation of
the company.
5. Learned counsel submits that petitioner cannot file an appeal
against the order dated 15.10.2020 because in terms of Section 61 of
the Insolvency and Bankruptcy Courts, 2016 an appeal has to be filed
within 30 days and the National Company Law Appellate Tribunal
can extend the period for on showing sufficient case by a maximum
period of 15 days.
6. He submits that today the appeal is beyond limitation and even
the period extendable by the National Company Law Appellate
Tribunal is over. Learned counsel submits that appeal could not be
filed within the time as the counsel for the petitioner was diagnosed
with Covid-19 and had been under treatment and in isolation, during
which period the period for filing an appeal as well as the extendable
period lapsed. He submits that in view of the above, petitioner has
approached this Court under Article 227 of the Constitution of India.
7. Learned counsel for the respondent submits that Section 238A
which has been incorporated by a subsequent amendment to the
Insolvency and Bankruptcy Court w.e.f. 06.06.2018, limitation Act
has been made applicable and accordingly, the provisions of Section 5
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:22.12.2020 09:38:01 CM(M) 647/2020 Page 2
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
of the Limitation Act may be applicable.
8. Mr. Khosla, learned counsel appearing for the petitioner
submits that his understanding is that Section 5 of the limitation Act
would not apply where the Statute specifically provides that the
limitation period for filing an appeal may be extended but such period
of extension shall not exceed 15 days.
9. It is settled position in law that powers of the High Court under
Article 227 of the Constitution of India are discretionary and have to
be sparingly used and cannot be exercised in the "cloak of an appeal
in disguise"1.
10. The admitted case of the petitioner is that the limitation as
prescribed under Section 61 Sub Section (2) read with proviso is a
strict period of limitation which cannot be extended. Admittedly the
period to file an appeal has already lapsed.
11. In my view, High Court should resist from exercising
jurisdiction under Article 227 of the Constitution of India specifically
in a case where a remedy of appeal is provided and a strict period of
limitation is made applicable and the aggrieved party permits the
period of limitation to lapse, maybe for valid or reasons otherwise.
12. Since order dated 15.10.2020 was admittedly an appealable
order, though subject to the period of limitation and no appeal has
State through Special Cell CBI Versus Navjot Sandhu alias Afshan Guru
Signature Not Verified
(2003) 6 SCC 641
Digitally Signed By:KUNAL
MAGGU
Signing Date:22.12.2020 09:38:01 CM(M) 647/2020 Page 3
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
been filed by the petitioner within the statutory period or the
extendable period under proviso to Section 61(2) of the Insolvency
and Bankruptcy Court, 2016, I am not inclined to exercise the
discretionary powers under Article 227 of Constitution of India to
permit a challenge to the said order.
13. The contention of learned counsel for the respondent that
Section 5 of the Limitation Act may apply does not arise for
consideration in these proceedings. Though, it may arise in case
petitioner were to file an appeal before the Appellate Tribunal, in
which case it would be for the Appellate Tribunal to consider as to
whether provisions of Section 5 of the Limitation Act would apply or
not.
14. I find no ground to entertain the present petition. The petition is
accordingly dismissed.
15. Copy of the Order be uploaded on the High Court website and
be also forwarded to learned counsels through email.
SANJEEV SACHDEVA, J.
DECEMBER 21, 2020
rk
Signature Not Verified
Digitally Signed By:KUNAL
MAGGU
Signing Date:22.12.2020 09:38:01 CM(M) 647/2020 Page 4
This file is digitally signed by PS
to HMJ Sanjeev Sachdeva.
