2023 (5) TMI 531 - AT - Insolvency and Bankruptcy

Condonation of delay - time limit for filing appeal - Cloud9 Apartment Owner Association challenged the admission of application for Initiation of CIRP - HELD THAT - The remedy of appeal is a creation of statute. Section 61 of the Code deals with the appeal and the Appellate Authority - It is provided in Section 61(1) of the Code that if any person is aggrieved by the order of the Adjudicating Authority, he may prefer an appeal to this Tribunal. Section 61(2) of the Code provides that every such appeal provided under Section 61(1) shall be filed within thirty days before this Tribunal and proviso to Section 61(2) says that the period of 30 days allowed to file the appeal can further be extended to 15 days and not thereafter. Meaning thereby, the limitation to file an appeal before this Tribunal is only upto 45 days out of which the period of fifteen days can be used by the Appellant for the purpose of extension of period of limitation on assigning sufficient cause to the satisfaction of the Appellate Authority for condonation of delay. In the present case, admittedly within the period of 30 days and even the extended period of 15 days i.e. 45 days no appeal was filed rather the Writ Petition was filed before the Hon ble High Court in which the aforesaid order has been passed. Application dismissed.

Summary

Issues involved:
The issues involved in the judgment are related to the filing of an appeal under Section 9 of the Insolvency and Bankruptcy Code, 2016, the statutory period for filing an appeal, and the condonation of delay in filing the appeal.

Filing of Appeal and Condonation of Delay:
The Operational Creditor initiated Corporate Insolvency Resolution Process against the Corporate Debtor, and the application was admitted by order dated 31.03.2022. The appeal was filed by 'Cloud9 Apartment Owner Association' after the statutory period of 30 days plus 15 days, seeking condonation of delay. The Hon'ble High Court of Delhi permitted the association to approach the NCLAT within 15 days to challenge the order dated 31st March, 2022, considering the unique circumstances of the case. The appeal was filed on 04.04.2023 along with an application for condonation of delay. The Tribunal emphasized that the limitation to file an appeal is only up to 45 days, and the delay cannot be condoned beyond this period, as per Section 61 of the Insolvency and Bankruptcy Code.

Legal Precedents and Dismissal of Appeal:
Referring to the case of 'National Spot Exchange Limited Vs. Anil Kohli Resolution Professional for Dunar foods Limited,' the Tribunal highlighted that the delay in filing the appeal cannot be condoned beyond the statutory period, even with the exercise of jurisdiction under Article 142 of the Constitution. Citing the case of 'Teri Oat Estates (P) Ltd. v. U.T. Chandigarh,' the Tribunal reiterated that sympathy or sentiment cannot be a ground for passing an order contrary to statutory provisions. The Tribunal emphasized that even though the High Court permitted the appeal to be filed within a specific period, it does not have jurisdiction to condone the delay after 45 days, as established by legal precedents. Consequently, the Tribunal found no merit in the application for condonation of delay and dismissed the appeal.

Conclusion:
The judgment underscores the importance of adhering to statutory timelines for filing appeals under the Insolvency and Bankruptcy Code. Despite the High Court's permission to file the appeal within a specified period, the Tribunal cannot condone delays beyond the statutory limit of 45 days. Legal precedents and specific provisions of the Code dictate that appeals must be filed within the prescribed timeframe, and any delay beyond the stipulated period cannot be condoned by the Tribunal.