9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (3) TMI 449 - AT - Insolvency and BankruptcyCondonation of delay of 5 days in physical filing of Hard Copies of the Appeal Type Set of papers - wilful or wanton delay or not - plea of the Petitioner / Appellant is that, there is no proof that the Order, was pronounced / dictated Online on 11.10.2022, when the Appellant, was present and when the Order, is not Pronounced, then the date of receipt of Order alone, can be used to calculate, the Limitation. HELD THAT - Undoubtedly, a Remedy, under the Limitation Rules, can be exercised only upto a particular point of time and not later, as the case may be. Indeed, the Stakeholders / Litigants / Entities, are to be quite diligent and they cannot remain negligent, and resort to a callous attitude, especially, in the spirit of the I B Code, 2016, that Speed is its Gist. In so far as the Plea of the Petitioner / Appellant, is that the Impugned Order, was not Pronounced by the Adjudicating Authority (Tribunal) on 11.10.2022, and the same was not available for a long period and further that it was uploaded by the NCLT (Tribunal) on 21.11.2022, this Tribunal, pertinently points out the Judgment of the Hon ble Supreme Court in Central Bank of India v. Vrajlal Kapurchand Gandhi Anr. 2003 (7) TMI 708 - SUPREME COURT , wherein, it is observed that This Court cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable However, the Court can pass appropriate orders if a party moves it contending that the order has not correctly reflected happenings in Court. It cannot be gainsaid that in view of Article 141 of the Constitution of India, the Law, declared by the Hon ble Supreme Court is binding on all Subordinate Courts, Tribunals, Appellate Tribunal, etc., as opined by this Tribunal. In the instant case, the Order, dismissing Ivn.P/7(CHE)/2022 in IA/248(CHE)/2022 in IBA/471/2020, was Pronounced by the Adjudicating Authority (Tribunal) on 11.10.2022 in Open Court itself, at once, and hence, the Petitioner / Appellant, cannot have any grievance, because in the presence of its Authorised Representative, the impugned order, was passed and as such, there is sufficient compliance of Rule 150 (1) of the NCLT Rules, 2016, in the considered opinion of this Tribunal, Moreover, the Petitioner / Appellant s Authorised Representative and the Learned Counsel for the Appellant, had knowledge of the Order on 11.10.2022 itself, and hence, the time for computing the Limitation, had commenced from 11.10.2022, and there is no acceptable / sufficient justiciable reason on behalf of the Petitioner / Appellant, in remaining inactive from 11.10.2022 to 24.11.2022. In the instant case, the Petitioner / Appellant, from the date of Pronouncement of Order of Dismissing the Ivn.P/7(CHE)/2022 in IA/248(CHE)/2022 in IBA/471/2020, on 11.10.2022 (in Open Court), by the Adjudicating Authority (NCLT), the instant Comp. App (AT) (CH) (INS.) No. 41 of 2023, ought to have been filed within 30 days, from the date of the Order, i.e. on 10.11.2022, as per Section 61(2) of the I B Code, 2016 - In the present case, the 45 days period lapsed on 25.11.2022. The E-filing of the Appeal Papers were made on the side of the Petitioner / Appellant, on 23.12.2022. After 45 days (30 15), there is a Delay of 28 days. In fact, the Certified Copy of the Impugned Order was issued to the Petitioner / Appellant, on 24.11.2022. Thus, it is candidly clear that the Petitioner / Appellant, had E-filed the Appeal Papers on 23.12.2022, i.e. on 73rd day, and the physical filing, was made, on 28.12.2022. By taking into account of the fact that 30 days Limitation Period, ends on 10.11.2022 (from the date of Impugned Order, i.e., on 11.10.2022) and the 45 days period, comes to an end, on 25.11.2022, and keeping in mind of another fact that the E-filing of the Appeal Papers, were done on behalf of the Petitioner / Appellant, on 23.12.2022, and after deducting (30 15 45 days - the Outer Limit Period), still there is a Delay of 28 days, and there is no power, enjoined upon Appellate Tribunal, to condone the Delay, beyond the permissible / prescribed period, as per Section 61 of the I B Code, 2016. Application dismissed.
Issues Involved:
1. Pronouncement and availability of the impugned order. 2. Delay in filing the appeal. 3. Applicability of Rule 11 of the NCLAT Rules, 2016 and Section 5 of the Limitation Act, 1963. 4. Calculation of limitation period. 5. Medical reasons cited for delay. 6. Jurisdiction to condone delay beyond the prescribed period. Issue-wise Detailed Analysis: 1. Pronouncement and Availability of the Impugned Order: The Petitioner/Appellant contended that the impugned order dated 11.10.2022 was not pronounced by the Adjudicating Authority (NCLT, Division Bench, Court - I, Chennai) and was only received on 24.11.2022. The Petitioner/Appellant argued that the order was not listed for pronouncement and was uploaded on the NCLT Portal only on 21.11.2022, leaving no option to file an appeal within time. The Tribunal, however, pointed out that the order was pronounced in open court on 11.10.2022, as recorded in the Attendance-cum-Order Sheet, and the Petitioner/Appellant had knowledge of the order on the same date. 2. Delay in Filing the Appeal: The Petitioner/Appellant filed the appeal papers via the E-filing Portal on 23.12.2022 and physically on 28.12.2022, citing medical reasons and holidays for the delay. The Tribunal noted that the appeal should have been filed within 30 days from the date of the order, i.e., by 10.11.2022, with an additional 15 days for sufficient cause, making the outer limit 25.11.2022. The appeal was filed on the 73rd day, resulting in a delay of 28 days beyond the permissible period. 3. Applicability of Rule 11 of the NCLAT Rules, 2016 and Section 5 of the Limitation Act, 1963: The Respondent argued that the Petitioner/Appellant could not resort to Rule 11 of the NCLAT Rules, 2016 or Section 5 of the Limitation Act, 1963, for condonation of delay, as Section 61 of the I&B Code, 2016 provides the remedy. The Tribunal agreed, emphasizing that the limitation period under the I&B Code is strict, and the Tribunal does not have the power to condone delays beyond the prescribed period. 4. Calculation of Limitation Period: The Tribunal highlighted that the limitation period runs from the date of pronouncement of the order. The Petitioner/Appellant's reliance on the date of receipt of the certified copy was rejected. The Tribunal referenced the Supreme Court's judgment in V. Nagarajan v. SKS Ispat and Power Limited, which clarified that the limitation period begins from the date of pronouncement, not from the date the order is made available. 5. Medical Reasons Cited for Delay: The Petitioner/Appellant cited medical reasons for the delay, including the Designated Partner's medical tests. The Tribunal found these reasons irrelevant and insufficient to justify the delay, emphasizing the need for diligence in filing appeals within the prescribed period. 6. Jurisdiction to Condon Delay Beyond the Prescribed Period: The Tribunal reiterated that it has no jurisdiction to condone delays beyond the prescribed period of 45 days (30 days plus 15 days for sufficient cause) under Section 61 of the I&B Code, 2016. The appeal filed on the 73rd day was beyond the Tribunal's power to condone. Result: The Tribunal dismissed IA No. 149 of 2023 seeking condonation of delay, and consequently, the main appeal Comp. App (AT) (CH) (INS.) No. 41 of 2023 was also rejected. The Tribunal emphasized the importance of adhering to the strict timelines prescribed under the I&B Code, 2016, and the necessity for parties to exercise due diligence in filing appeals.
|
