Supreme Court asks government to introspect over delay in filing appeal

Coming down heavily on the National Highways Authority of India (NHAI) for late filing of an appeal, the Supreme Court on Friday asked the government to do some “introspection” and punish the erring officials.

“When everybody is adhering to the time schedule, then why the government of India (GoI) is not doing so. There is something wrong somewhere. Some introspection has to be done. We can not help you,” a Bench led by Chief Justice Sanjiv Khanna the CJI told Solicitor General Tushar Mehta while dismissing the highway authority’s appeal against IVRCL Chengapalli Tollways.

The CJI wondered how a “strange request” was coming from the GoI to condone the delay of 229 days in filing an appeal in the National Company Law Appellate Tribunal in an insolvency case.



The apex court observed that if NHAI had immediately acted upon in the case and filed the appeal on time, it had a better chance of succeeding.

“We do not find any good ground and reason to interfere with the judgment (of NCLAT) which holds that the appeal preferred by NHAI was barred by limitation. Accordingly, the appeal is dismissed. There is something seriously wrong. Please do some introspection (to the government)," the CJI reiterated.

However, Mehta said he will look into the issue and take up the matter with the NHAI chairman.

NHAI had in 2010 entered into a concession agreement with IVRCL and the latter had to commence user fee collection from 2015 and pay Rs 36 crore per year to the highways authority. However, as per NHAI, not a single payment of premium was paid by IVRCL to it. Even deferment granted earlier in 2016 was withdrawn in March 2021 on account of non-adherence to the terms and the concessionaire was directed to pay the entire outstanding premium with interest in accordance with the Concession Agreement.

In 2022, the Hyderabad bench of the National Company Law Tribunal admitted a petition to start insolvency proceedings against IVRCL Chengapalli. While NHAI filed its claim of Rs 445 crore, the resolution professional (RP) admitted its claim for around Rs 400 crore in the category of “creditors other than financial creditors and operational creditors.”

The highway body had moved the NCLAT against the NCLT’s March 2023 order that approved SPCP Luxembourg Strategies S.A.R.L’s resolution plan for IVRCL Chengapalli. In August, the appellate tribunal had dismissed the NHAI's appeal on account of delay in filing its case.

NHAI in its appeal before the SC claimed that it was an "operational creditor" having operational debt not less than 10% of the total debt, but the RP deprived it of its statutory right to participate in the committee of creditors' meetings. The resolution plan had sought to unilaterally amend the long-term concession agreement to its detriment, it contended.

In the absence of the NHAI, who was an operational creditor having more than 10% of debt, a wholly illegal resolution plan was approved by a single-member committee of creditors, the appeal stated, adding that the RP in connivance with the successful applicant ensured that the deferment of premium was revived, and subsequently approved by the lenders and the tribunal.