SUMAN MOTELS LIMITED Vs. BIFR AND OTHERS

JUDGEMENT

(1.) SUMAN Motels Limited, the appellant company, has filed this appeal under section 25 of Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) against the order dated 28.3.2006 passed by the Board for Industrial and Financial Reconstruction (BIFR) whereby the BIFR has dismissed the reference filed by the appellant company as non maintainable.

(2.) ALONG with the appeal, appellant has also filed MA No. 499 of 2007, for condonation of delay. In the application for condonation of delay, the contention of the appellant is that he has filed this appeal against the impugned order dated 28.3.2006 which was issued to the appellant company on 7.6.2006. However, the appellant did not receive the same as it was not sent to the correct address. The original postal envelope was returned unserved by the postal authorities with the remark left. Thereafter, the appellant inspected the file of the BIFR on 27.9.2006 and obtained the certified copy of the impugned order only on 27.9.2006 and filed this appeal on 23.11.2006, i.e., on 57th day. Thus, this appeal has been filed 12 days after the prescribed period of 45 days. Therefore, this appeal is barred by limitation by only 12 days and under the proviso of section 25 of SICA, this Authority has the power to condone the delay upto 15 days beyond the period of 45 days. It is further submitted in the application that since action under section 13 of the SARFAESI Act was taken by the secured creditors and they had also taken possession of the assets, he remained busy in settling the dues of the creditors and could not file the appeal aiming at a concrete settlement before preferring the appeal. Further the appellant company is short of staff and could not take out the necessary information for preferring the appeal. It is, therefore, argued that though no concluding settlement has emerged till the date of filing appeal, the appellant has filed this appeal on 23.11.2006 after a delay of 12 days which may be condoned.

(3.) IN reply, Punjab National Bank (PNB) has seriously opposed the application for condonation of delay and has denied the contentions of the appellant company made in the MA No. 499 of 2007 that it did not receive the original copy of the impugned order as the same are not based on facts of the case. It was submitted on behalf of the PNB that the appellant has relied upon annexure 'B' of the appeal showing return of original postal envelope by the postman. In fact, annexure 'B' contains proof of non -delivery of order at address listed at S. No. 2 in the BIFR order, meant for managing director of the company. It is further submitted by the PNB that the main address of the appellant is, as per the mailing list of BIFR at S. No. 1, which is the company's registered office to which orders were sent by the BIFR to the chairman and managing director of the company. No proof of non -delivery of the impugned order at the address of Sr. No. 1, i.e., to the chairman and managing director of the appellant company at its registered office has been furnished meaning thereby that the impugned order was served on address at S. No. 1 i.e. the chairman and managing director and was received by the appellant company. The impugned order was issued on 12.6.2006 and must have been received within a period of about 8 days, i.e., 21.6.2006, which is the normal period of service but the appellant has filed this appeal on 23.11.2006. Hence, there is a delay of 118 days after the prescribed period of 45 days. Therefore, this appeal is hopelessly barred by limitation. It is further submitted by the Punjab National Bank that the averments made by the appellant in the appeal as well as in the application for condonation of delay are totally wrong, misconceived and untenable. Therefore, MA No. 499 of 2007 is liable to be dismissed.