2023 (10) TMI 536 - AT - Insolvency and Bankruptcy

Condonation of Delay - period of limitation is to be computed from the date of knowledge of the order or otherwise - sufficient cause for delay present or not. Whether limitation for filing an Appeal under Section 61 of the IBC shall commence from the date of the order or from the date when contents of the order are known to the aggrieved party i.e. the date when copy of the order is received by an aggrieved party? - HELD THAT - In the present case, orders passed by the Adjudicating Authority were pronounced in the open Court in the presence of the Counsel for the Appellant. In any view of the matter, they cannot contend that they do not have even constructive knowledge of the order on the said date. Knowledge of the order has to be actual or constructive knowledge and when the orders are pronounced, it can very well be said that the constructive knowledge has to be imputed to the contents of the order to an aggrieved party. In the present case, when orders were pronounced by the Adjudicating Authority, they cannot be allowed to contend that they are not aware of the order of the Adjudicating Authority. Further, Section 12 of the Limitation Act provides for exclusion of the time taken in obtaining certified copy of an order. After an order is pronounced which pronouncement is well known to the Appellant in the present case, it was open for them to apply for the certified copy of order, even if they are not aware of the contents of the order as per their submissions on that date - Law, thus, clearly provides opportunity to any aggrieved party to obtain certified copy of the order and file an appeal after exclusion of the period obtaining in certified copy of the order. Legislative scheme takes care of all situations where order was pronounced by a Court, it is expected for the parties to diligently apply for certified copy of the order in event there may be any chance to file an appeal. The limitation for filing an Appeal under Section 61 shall commence from the date when the order is pronounced and not from the date when aggrieved party or Appellant claims to have knowledge of the contents of the order. Whether in the Delay Condonation Application being IA No.3694 of 2023 sufficient grounds have been made out to condone the delay in filing the Appeal? - HELD THAT - It is undisputed that the order was pronounced on 08.05.2023. The order clearly notices the presence of the Counsel who appeared on the date physically/ video conferencing. It is not denied by the Appellant that the order was pronounced on 08.05.2023. The submission of the Appellant that he came to know about the contents of the order only when order was received by an e-mail dated 02.06.2023 - The Appeal having been filed on 04.07.2023 i.e. after 15 days from expiry of limitation, there is a delay of 27 days in filing the Appeal. The jurisdiction to condone the delay is limited to only 15 days under Section 61(2), the Delay Condonation Application cannot be allowed - no sufficient ground has been made out in I.A. No.3694 of 2023 to condone the delay in filing the Appeal being Company Appeal (AT) (Insolvency) No. 1071 of 2023. Whether in Delay Condonation Application being IA No.1956 of 2023 sufficient grounds have been made out to condone the delay in filing the Appeal? - HELD THAT - The order was pronounced by the Adjudicating Authority on 12.01.2023. Counsel for the Successful Resolution Applicant i.e. Appellant was present when the order was pronounced - Appellant s case is that he has applied for certified copy on 06.02.2023 and he has received free of cost copy on 08.02.2023. Even if exclusion of the aforesaid period is given, it shall be only 3 days against the order dated 12.01.2023. Appeal has been filed on 11.03.2023 even after giving exclusion of 3 days, period of 45 days shall come to an end by 02.03.2023, hence, the appeal has been filed with a delay of more than 15 days after expiry of limitation. Jurisdiction to condone the delay is limited to 15 days, the delay in filing the appeal cannot be condoned. There are no sufficient grounds made out in I.A. No.1956 of 2023 to condone the delay in filing the Appeal being Company Appeal (AT) (Insolvency) No.588 of 2023 - both the Delay Condonation Applications dismissed.

Summary

Issues Involved:

(i) Whether limitation for filing an Appeal under Section 61 of the IBC shall commence from the date of the order or from the date when contents of the order are known to the aggrieved party i.e. the date when copy of the order is received by an aggrieved party?

(ii) Whether in the Delay Condonation Application being IA No.3694 of 2023 sufficient grounds have been made out to condone the delay in filing the Appeal?

(iii) Whether in Delay Condonation Application being IA No.1956 of 2023 sufficient grounds have been made out to condone the delay in filing the Appeal?

Summary:

Issue (i): The Tribunal addressed whether the limitation for filing an appeal under Section 61 of the IBC begins from the date of the order or from the date when the contents of the order are known to the aggrieved party. The Tribunal held that the limitation period commences from the date the order is pronounced, not when the aggrieved party becomes aware of its contents. This conclusion was based on the statutory scheme of the IBC and relevant judgments, including the Supreme Court's decision in "V. Nagarajan vs. SKS Ispat and Power Limited and Ors." which emphasized that the limitation period starts from the pronouncement date. The Tribunal noted that applying for a certified copy of the order is a proactive step required from the aggrieved party, and the time taken to obtain this copy can be excluded from the limitation period.

Issue (ii): In the Delay Condonation Application IA No.3694 of 2023, the Tribunal found that the order was pronounced on 08.05.2023, and the appeal was filed on 04.07.2023, resulting in a delay of 27 days. Since the Tribunal's jurisdiction to condone the delay is limited to 15 days under Section 61(2) of the IBC, it concluded that sufficient grounds were not made out to condone the delay. Therefore, the application was dismissed.

Issue (iii): For the Delay Condonation Application IA No.1956 of 2023, the Tribunal noted that the order was pronounced on 12.01.2023, and the appeal was filed on 11.03.2023. Even after excluding the period taken to obtain a certified copy, the appeal was filed beyond the permissible limit of 45 days. The Tribunal reiterated that it could not condone a delay exceeding 15 days beyond the limitation period. Consequently, the application was dismissed.

Conclusion: Both Delay Condonation Applications were dismissed, and the respective appeals were rejected due to the failure to file within the prescribed limitation period and the Tribunal's limited jurisdiction to condone delays beyond 15 days.