2022 (12) TMI 146 - AT - Insolvency and Bankruptcy

Jurisdiction - power of Tribunal to entertain and decide an application for condonation of delay beyond the period of 45 days - Section 61 of I B Code - HELD THAT - Section 61(1) provides that any person who is aggrieved by the order of the Adjudicating Authority can prefer an Appeal to the NCLAT. Section 61(2) says that every appeal preferred under Section 61(1) has to be filed within 30 days before the Appellate Tribunal. Proviso to 61(2) says that the Appellate Tribunal may allow the appeal after expiry of 30 days if it is satisfied that there is a sufficient cause in not filing the appeal in time but such period should not exceed 15 days. There is no other proviso in the Code, which is complete in itself, for the purpose for providing a window for filing the appeal beyond the period of 45 days. The plain reading of the aforesaid provision that the Appellant has a statutory right without any hindrance to file an appeal within 30 days before the Appellate Tribunal. But in case the appeal is filed by the Appellant, because of sufficient reason, within a further period of 15 days, it can seek condonation of delay in not filing the appeal by filing an Application under Section 5 of the Act. In these circumstances, the judgment relied upon by the Appellant in the case of Sesh Nath Singh 2021 (3) TMI 1183 - SUPREME COURT would be helpful to him but when the appeal has been filed beyond the period 45 days, then the decision rendered in the case of National Spot Exchange Limited Vs. Anil Kholi 2021 (9) TMI 1156 - SUPREME COURT would be applicable by which the Hon ble Supreme Court has held t he Appellate Tribunal has no jurisdiction at all to condone the delay exceeding 15 days from the period of 30 days, as contemplated under Section 61(2) of the IB Code. We have no doubt in our mind that the Appellant has missed the bus by causing delay in filing the appeal beyond the period of 45 days and cannot take the plea of an innocent litigant because it is not the jurisdiction of the Appellate Tribunal to look into the sufficient cause or otherwise while hearing the Application which has been filed under Section 5 of the Act for seeking condonation of delay beyond the period of 45 days. The appeal is hopelessly time barred and the same is hereby dismissed.

Summary

Issues:
- Appeal against the order dismissing an Application under Section 9 of the Insolvency and Bankruptcy Code, 2016
- Interlocutory Application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the appeal
- Jurisdiction of the Tribunal to entertain an application for condonation of delay beyond the specified period
- Interpretation of Section 61 of the Insolvency and Bankruptcy Code regarding the timeline for filing an appeal and condonation of delay

Analysis:
1. The appeal before the National Company Law Appellate Tribunal was against the dismissal of an Application under Section 9 of the Insolvency and Bankruptcy Code, 2016. The Appellant filed an Interlocutory Application under Section 5 of the Limitation Act, 1963, seeking condonation of delay in filing the appeal beyond the statutory period of 30 days.

2. The Counsel for the Appellant argued that the delay in filing the appeal was due to various reasons, including the time taken to prepare the necessary documents and the appellant being based in Taiwan. The Appellant contended that the delay was bonafide and should be condoned, citing a Supreme Court decision emphasizing the need to consider each case's facts for condonation of delay.

3. The Counsel for the Caveator opposed the condonation of delay, highlighting that the appeal was filed after a delay of more than 45 days. Referring to a Supreme Court decision, the Counsel argued that the Tribunal lacked jurisdiction to entertain the Application for condonation of delay beyond the specified period.

4. The Tribunal examined Section 61 of the Insolvency and Bankruptcy Code, which mandates that appeals must be filed within 30 days, with a provision to extend the period by 15 days in case of sufficient cause. The Tribunal emphasized that beyond the total period of 45 days, the jurisdiction of the Tribunal to condone the delay is restricted, as per the Supreme Court's interpretation in a relevant case.

5. Ultimately, the Tribunal concluded that the appeal was time-barred, as the Appellant had exceeded the permissible period for filing the appeal and seeking condonation of delay. The Tribunal dismissed the Application for condonation of delay and consequently dismissed the appeal as well, citing the statutory limitations outlined in the Insolvency and Bankruptcy Code.

In summary, the Tribunal's decision was based on the strict interpretation of the statutory timelines for filing appeals and seeking condonation of delay under the Insolvency and Bankruptcy Code, ultimately leading to the dismissal of the appeal due to exceeding the prescribed period.