2022 (11) TMI 296 - AT - Insolvency and Bankruptcy

Condonation of delay in filing appeal - approval of resolution plan - Section 61 of the IBC, 2016 - HELD THAT - It is an admitted case of the parties that Appeal has been filed by the Appellant against the Order dated 15th June, 2022 on 01st August, 2022 i.e. 47th Day. The first submission of the Appellant is that 30th and 31st day being holiday and Court reopened on 1st August, 2022 only, hence filing the Appeal on 01st August, 2022 is within time - The Limitation as prescribed by Section 61(2) is 30 days. Under proviso, the Appellate Tribunal may allow an Appeal to be filed after said period of 30 days if it is satisfied that there is sufficient cause for not filing the Appeal but such period shall not exceed 15 days. According to the Appellant 46th and 47th Day i.e. 30th and 31st July were holidays. For purposes of extending the benefit of Section 4 of the Limitation Act, the Limitation has to be expired on the date when Court is closed, present is not a case where the Limitation expired on a date when the Court was closed since limitation is of 30 days and not 45 days. The power to condone the delay of 15 days is exercised by this Tribunal under proviso to Section 61(2) of the Code but it cannot be said that period for limitation is 45 days. Thus the present is not a case where benefit of Section 4 can be extended. Section 14 of the Limitation Act in strict terms does not apply to the Appeal which is clear from the plain reading of Section 14 of the Limitation Act. The limitation act uses the expression Application , Suit and Appeal differently and the provisions in the schedule providing for limitation of Application, Suit and Appeal are all different - The law is thus well settled that even in cases where Section 14 is not strictly applicable, the principle underlying Section 14 can be invoked. From the facts of the present case, it is clear that Appellant is claiming benefit of Section 14 on the basis of I.A. No. 145 of 2022 filed in the same proceeding i.e. C.P. IB No. 107/ALD/2019. In which proceeding, by Impugned Order, I.A. No. 79 of 2022 has been allowed - Present is not a case where it is even contended that IA No. 145 of 2022 was not entertained due to any defect of the jurisdiction or other cause of like nature. The Adjudicating Authority before whom the Application was filed, was fully competent to entertain the Application. The principle under Section 14 are attracted when a claimant is prosecuting another civil proceeding the use of expression another civil proceeding as occuring in Section 14(1) and 14(2) is for definite purpose and object. The Applicant is not entitled to claim benefit of Section 14 of the Limitation Act, 1963 on account of having filed an I.A. No. 145 of 2022 in the same proceeding i.e. CP(IB) No. 107/ALD/2019 which was dismissed as withdrawn on the request made by the Appellant - the jurisdiction of this Tribunal to condone the delay is of only 15 days in addition to period of limitation of 30 days. The delay in filing the Appeal is beyond 15 days after expiring of the limitation, the delay in filing the Appeal cannot be condoned - appeal dismissed.

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Applicability of Section 4 of the Limitation Act, 1963.
3. Applicability of Section 14 of the Limitation Act, 1963.

Detailed Analysis:

Condonation of Delay in Filing the Appeal:
The Appellant filed I.A. No. 3349 of 2022 seeking condonation of delay in filing the appeal against the order dated 15th June 2022. The appeal was filed on 1st August 2022, which was the 47th day from the date of the impugned order. The prescribed period for filing an appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (IBC) is 30 days, extendable by an additional 15 days if sufficient cause is shown. The Appellant argued that the delay should be condoned because the Tribunal was closed on 30th and 31st July 2022.

Applicability of Section 4 of the Limitation Act, 1963:
The Appellant contended that the appeal filed on 1st August 2022 was within the limitation period as per Section 4 of the Limitation Act, 1963, which allows for the filing of an appeal on the next working day if the prescribed period expires on a day when the court is closed. The Tribunal noted that the 30-day period for filing the appeal expired on 15th July 2022, a day when the court was not closed. Therefore, the benefit of Section 4 could not be extended to the Appellant, as the limitation period did not expire on a day when the court was closed.

Applicability of Section 14 of the Limitation Act, 1963:
The Appellant also sought the benefit of Section 14 of the Limitation Act, 1963, arguing that they had been pursuing I.A. No. 145 of 2022 before the Adjudicating Authority, which was a civil proceeding prosecuted with due diligence and in good faith. The Tribunal examined the applicability of Section 14, which allows for the exclusion of time spent in prosecuting another civil proceeding in a court that lacked jurisdiction. The Tribunal noted that Section 14 in strict terms does not apply to appeals and that the Appellant's I.A. No. 145 of 2022 was filed in the same proceeding before the same Adjudicating Authority, which was competent to entertain the application. Therefore, the principle underlying Section 14 could not be invoked in this case.

Conclusion:
The Tribunal concluded that the Appellant was not entitled to the benefit of Section 14 of the Limitation Act, 1963, as I.A. No. 145 of 2022 was filed in the same proceeding before the same Adjudicating Authority. The jurisdiction of the Tribunal to condone the delay is limited to 15 days beyond the prescribed 30-day period. Since the delay in filing the appeal was beyond this period, the Tribunal dismissed I.A. No. 3349 of 2022 and consequently rejected the memo of appeal.