2023 (5) TMI 14 - AT - Insolvency and Bankruptcy

Seeking condonation of delay of 6 days in filing appeal - commencement of period for computation of limitation - order was passed against different Corporate Debtor - HELD THAT - From the facts, which have been brought on the record it is clear that on 13.01.2023 when the Adjudicating Authority passed order in Company Petition (IB) No. 79 (ND) 2021, order was passed against the company Mansfield Cables Company Infrastructure Pvt. Ltd. 2023 (1) TMI 1245 - NATIONAL COMPANY LAW TRIBUNAL NEW DELHI , which is apparent from the copy of order Annexed with Appeal as Annexure A-I. When insolvency resolution process has not begun against the present Corporate Debtor of which the Appellant is director i.e. Mansfield Power Infrastructure Pvt. Ltd., there is no question of limitation start running against the Corporate Debtor on 13.01.2023, when the order was passed. There can be no quarrel to the proposition of law laid down by the Hon ble Supreme Court in V. Nagarajan vs. SKS Ispat and Power Limited Ors. 2021 (10) TMI 941 - SUPREME COURT that limitation for filing an appeal shall commence from the date when the order is pronounced. The above judgment of the Hon ble Supreme Court with regard to commencement of period of limitation from the date order is pronounced/ delivered is firmly settled. Limitation shall start for filing appeal from the date of pronouncement of order i.e. on 13.01.2023 but not against the Corporate Debtor of which Appellant is suspended Director rather limitation shall start against the Company Mansfield Cables Company Infrastructure Pvt. Ltd., against whom the order was passed. The law is well settled that limitation for filing Appeal shall commence from the date when order is delivered or pronounced but present is a case where order was passed against different Corporate Debtor namely Mansfield Cables Company Infrastructure Pvt. Ltd., which came to be corrected on 17.01.2023 and order dated 17.01.2023 correcting the name of the company was not in the knowledge of the present Corporate Debtor. In the peculiar facts of the present case, the Appellant is entitled to seek condonation of delay in filing the appeal which according to the Appellant has been filed with delay of only six days. The limitation can run against the Appellant when it is party to the proceeding and order is passed against it whether ex-parte or after hearing the appellant. Limitation shall commence in both from the passing of order either ex-parte or after hearing the appellant. When order under Section 9 was not passed against the company in question, it cannot be seen how limitation start running. Appellant in his application has categorically stated that he came to know of letter dated 18.01.2023 sent by the Resolution Professional which was received on 06.02.2023. Resolution Professional in the reply does not deny that he has not sent a letter. It is only stated that he has sent an email on 18.01.2023 to the Appellant. In the peculiar circumstances of the present case where order was not against the Corporate Debtor for initiating section 9 proceeding but a different company which was corrected subsequently, are satisfied that sufficient cause has been shown for condonation of delay in filing the appeal. Delay condonation application allowed.

Summary

Issues Involved:
1. Condonation of delay in filing Company Appeals.
2. Commencement of limitation period for filing an appeal.
3. Typographical error in the name of the Corporate Debtor.

Summary:

Condonation of Delay in Filing Company Appeals:
The appellant filed two I.As seeking condonation of delay in filing Company Appeal (AT) (Ins.) Nos. 351 & 352 of 2023 against orders dated 13.01.2023 and 17.01.2023. The appeals were e-filed on 15.03.2023. The appellant argued that the orders were ex-parte and initially passed against "Mansfield Cables Company & Infrastructure Pvt. Ltd.", not the Corporate Debtor "Mansfield Power & Infrastructure Pvt. Ltd." The appellant received information about the order on 07.02.2023 and filed the appeal with a delay of 6 days, requesting condonation.

Commencement of Limitation Period for Filing an Appeal:
Respondents opposed the delay condonation, arguing that the order dated 13.01.2023 was not ex-parte and the limitation period should commence from the date the order was pronounced. They cited the Supreme Court judgment in "V. Nagarajan vs. SKS Ispat and Power Limited & Ors." which states that the limitation period begins from the date the order is pronounced. The tribunal agreed that the limitation for filing an appeal commences from the date of pronouncement but noted that the order was initially against a different entity.

Typographical Error in the Name of the Corporate Debtor:
The adjudicating authority acknowledged a typographical error in the name of the Corporate Debtor and corrected it on 17.01.2023. The tribunal observed that the order dated 13.01.2023 was against "Mansfield Cables Company & Infrastructure Pvt. Ltd." and not "Mansfield Power & Infrastructure Pvt. Ltd." The correction was not in the knowledge of the present Corporate Debtor on the date of the original order. The tribunal concluded that the limitation period should commence when the correct order was communicated to the appellant.

Conclusion:
The tribunal found that the appellant was justified in seeking condonation of delay due to the initial error in the corporate debtor's name. The delay was condoned, and the appeals were listed for admission on 28.04.2023.