2024 (2) TMI 973 - AT - Insolvency and Bankruptcy

Maintainability of appeal - time limitation - whether the Appeal is within condonable period or it is beyond condonable period? Submission of the Appellant is that when the Hon ble Supreme Court has observed that Appellant to avail remedy of Appeal before the NCLAT within time it meant that from the said date, within 30 days, Appeal should be filed and Appellant having filed within 30 days, it is within time. HELD THAT - On looking into the order of the Hon ble Supreme Court passed in HIMANSHU BATTISH ANR VERSUS TODAY HOMES NOIDA PRIVATE LIMITED ANR. 2023 (7) TMI 1370 - SC ORDER , last line of the order mentions the period from the date of filing of the special leave petitions till today would stand excluded for the purposes of filing of the appeals. Thus what was intended by the Hon ble Supreme Court is that period during which SLP was pending before the Supreme Court, should be excluded. Hon ble Supreme Court was not pronouncing on the limitation for filing the present appeal on that date since the Appeal was not even filed and when we read the above line of the Hon ble Supreme Court it is clear that what was permitted was exclusion of the period during which the said SLP was pending. Even after exclusion of the said period, the present Appeal is filed beyond 15 days after expiry of the limitation and further clarification application which was filed by the Appellant has also been dismissed on 01.12.2023 by the Hon ble Supreme Court. The delay in filing the Appeal cannot be condoned which is beyond condonable period as provided under Section 61(2) of the Code. The appeal has been filed beyond 15 days after expiry of limitation, the appeal cannot be entertained. The Appeal being barred by time is dismissed.

Summary

Issues involved: Appeal against the Order dated 23rd November, 2021 passed by National Company Law Tribunal, Principal Bench in IB- 923/PB/2018 dismissed by the Appellate Tribunal. Question of whether the Appeal is within condonable period or beyond condonable period.

For the first issue, the Appellant filed an Appeal against the Order dated 23rd November, 2021 passed by National Company Law Tribunal, Principal Bench, which was dismissed. Subsequently, the Appellant filed a Civil Appeal after an order by the Hon'ble Supreme Court on 26th July, 2023. The main contention was whether the Appeal was filed within the condonable period as per Section 61(2) of the Code.

Regarding the second issue, the Appellant argued that the Appeal was filed within 30 days from the order of the Supreme Court, which allowed for the remedy of Appeal before the NCLAT within time. However, the Respondent contended that the limitation for filing the Appeal had expired before the filing. The Appellant also filed a clarification application which was dismissed by the Supreme Court on 01st December, 2023.

The Tribunal considered the submissions of both parties and examined the relevant provisions of Section 61(2) of the Code. It was noted that the Appeal was not filed within the 30-day period as prescribed, and the 15-day condonable period also lapsed. The Tribunal interpreted the Supreme Court's order as excluding the period during which the SLP was pending, but even after exclusion, the Appeal was filed beyond the permissible time limit.

In conclusion, the Tribunal held that the delay in filing the Appeal could not be condoned as it was beyond the condonable period specified in Section 61(2) of the Code. Since the Appeal was filed beyond 15 days after the expiry of the limitation, it was deemed barred by time and subsequently dismissed.