2022 (8) TMI 1320 - AT - Insolvency and Bankruptcy

Time limit provided from the date of the certified copy of the Order, to file appeal - HELD THAT - Under Section 61 (2) of the Code, the period provided for filing the Appeal is 30 days from the date of Order. The Appellant is entitled to exclude the period for which certified copy was under preparation. Certified Copy was applied on 08th June, 2022 and delivered on 09th June, 2022 hence two days period is entitled to be excluded in computing the limitation. 13th May, 2022 was the date on which Order was passed by the Adjudicating Authority hence Appellant has time to file the Appeal till 12th June, 2022 and further he is entitled for extension of two days limitation i.e. up 14th June, 2022 and this Tribunal has power to condone the delay of only 15 days, the delay in the present Appeal is more than 15 days hence we are unable to condone the delay. Hon'ble Supreme Court was considering the case of Sagufa Ahmed Vs. Upper Assam Plywood Productions (P) Ltd. 2020 (9) TMI 713 - SUPREME COURT , and those observations were with regard to the said case and in so far as the limitation under Section 61, paragraph 33 and 35 are very clear. It has been noticed in paragraph 33 that Section 61(1) and 61(2) omit the requirement of limitation being computed when the Order is made available to the aggrieved party , the change in statutory provision of Section 421 of the Companies Act and 61 has been clearly noticed and in paragraph 35 it has held that period will expire after 30 days from the date of order. This Appeal is clearly barred by time - Appeal is dismissed as barred by time.

Summary

Issues:
- Timeliness of filing the appeal under Section 61 of the Code

Analysis:
The Appellate Tribunal heard an appeal against the Order of the National Company Law Tribunal, Cuttack Bench, which dismissed the I.A.(IB) filed by the Appellant. The Appellant filed the appeal against this Order, claiming it was within the time limit based on the application date of the certified copy. The Tribunal examined Section 61(2) of the Code, which provides a 30-day period for filing an appeal from the date of the Order, excluding the time for certified copy preparation. The Tribunal concluded that the Appellant had until 14th June, 2022, to file the appeal, considering the exclusion of two days for certified copy preparation. However, as the appeal was filed on 8th July, 2022, exceeding the 15-day extension limit, the Tribunal could not condone the delay.

The Appellant relied on a Supreme Court judgment regarding the calculation of the limitation period for filing appeals under the IBC. The judgment clarified that the limitation period starts upon receipt of the certified copy, not when the order is made available. It emphasized the importance of due diligence by the aggrieved party to apply for a certified copy promptly. The Tribunal referenced specific paragraphs of the judgment to highlight the statutory provisions and the necessity for timely appeals under the IBC.

Further, the Appellant cited another Supreme Court judgment, which reiterated the strict adherence to the 30-day limitation period for filing appeals under Section 61(2) of the IBC. The Tribunal emphasized that the power to condone delay cannot exceed 15 days, as prescribed by the statutory provision. Despite the Appellant's arguments and references to legal precedents, the Tribunal found the appeal to be clearly time-barred and dismissed it on that basis. The Tribunal's decision was based on the explicit provisions of the law regarding the limitation period for filing appeals under the IBC, emphasizing the importance of timely compliance with statutory timelines.