M.R.SHAH, J. - (1.) Feeling aggrieved and dissatisfied with the impugned order dated 05.07.2019 passed by the National Company Law Appellate Tribunal, New Delhi (hereinafter referred to as the 'NCLAT ') in Company Appeal (AT)(Insolvency) No. 683 of 2019, by which the NCLAT has refused to condone the delay of 44 days in preferring the appeal against the order passed by the National Company Law Tribunal (hereinafter referred to as the 'NCLT '), rejecting the claim of the appellant herein, the appellant - National Spot Exchange Limited has preferred the present appeal.
(2.) The facts leading to the present appeal in nutshell are as under: That the State Bank of India has initiated the insolvency proceedings before the NCLT under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the 'IBC ') against one Dunar Foods Limited (hereinafter referred to as the 'Corporate Debtor ') on the ground that Corporate Debtor had taken credit limits by hypothecating the commodities kept in the warehouses of the appellant - National Spot Exchange Limited; that the NCLT admitted the petition and commenced the corporate insolvency resolution process against the corporate debtor under the provisions of the IBC. Interim Resolution Professional (for short, 'IRP ') was appointed. IRP invited the claims from the creditors of the corporate debtor - Dunar Foods Limited on or before 17.01.2018; that the appellant herein submitted its claim and also forwarded its claim through courier to IRP as per Form 'F ' of the IBC. At this stage it is required to be noted that the appellant herein earlier filed Money Suit against one PD Agro Processors Pvt. Ltd. (hereinafter referred to as 'PD Agro ') and the corporate debtor being Commercial Suit No. 11 of 2014 before the High Court of Judicature at Bombay. The High Court vide order dated 11.04.2014 in Notice of Motion 807 of 2014 in CS No. 328 of 2014 injuncted PD Agro and the Corporate Debtor from disposing of, alienating, encumbering, parting with possession of and/or otherwise creating third party rights in respect of its movable/immovable properties/assets; that one FIR No. 216 of 2013 was also lodged against PD Agro and subsequently the same came to be transferred to the Economic Offence Wing, Mumbai for further investigation; that the provisions of Maharashtra Protection of Depositors Act (MPID) Act, 1999 were also invoked; that it is the case on behalf of the appellant that the investigation report submitted by the investigating agency revealed that PD Agro has siphoned off funds to the tune of Rs.455 crores during the year 2011-12 and Rs. 289 crores during the year 2012-13 to the Corporate Debtor; that the High Court of Bombay passed a decree in Commercial Suit No. 11 of 2014 against PD Agro for Rs. 633,66,98,350.40 with 9% interest from the date of accrual of the course of action/default. The aforesaid shall be dealt with hereinafter. 2.1 That in response to the public announcement by the IRP inviting the claims from the creditors of the Corporate Debtor (Dunar Foods Limited) dated 6.1.2018, the appellant submitted the claim of Rs. 673.85 crores; that it was the case on behalf of the appellant that a decree has been passed against PD Agro for an amount of Rs.633,66,98,350.40 and on investigation by the Directorate of Enforcement, it is found that Rs. 744 crores have been siphoned off by PD Agro to the Corporate Debtor. IRP rejected the claim of the appellant on 18.06.2018 on the ground that there is no privity of contract between the appellant and the corporate debtor and that there is no letter or guarantee issued by the corporate debtor in favour of the appellant. That the rejection of the claim by IRP came to be challenged by the appellant before NCLT being Miscellaneous Application No. 603 of 2018 and the NCLT by order dated 6.3.2019 rejected the said application and upheld the decision of the IRP not to include the claim of the appellant as a creditor.
(3.) Being aggrieved and dissatisfied with the order passed by the NCLT dated 6.3.2019, the appellant herein preferred an appeal before the NCLAT. There was a delay of 44 days in preferring the said appeal. The appeal before the NCLAT was required to be filed within a maximum period of 45 days (30 days + 15 days). However, there was a further delay of 44 days beyond a total period of 45 days. Therefore, considering sub-section (2) of Section 61 of the IBC which provides for powers to the Appellate Tribunal to condone the delay of only 15 days which it can condone over the period of 30 days, if there is a sufficient cause, by the impugned order, the learned Appellate Tribunal has dismissed the appeal on the ground that the Appellate Tribunal has no jurisdiction to condone the delay beyond 15 days and thereby the appeal is barred by limitation.;