2024 (10) TMI 905 - AT - IBC

Determination of the period of limitation for filing an appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 - scope of Aggrieved Person - Principle of Estoppel by Conduct - HELD THAT - Admittedly, because the Appellant has not disputed the fact of email communications being made to him or generated from his email address during the course of the proceedings of CIRP, there will be a deeming presumption of knowledge and if the fact of knowledge is not denied by the Appellant by a specific pleading to that effect, in that eventuality he cannot be deriving the benefit of extension of limitation as a consequence of the Covid-19 situation, which according to the Judgment of the Hon ble Apex Court commenced from 15.03.2020, and the ratio of the said Judgment cannot be extended to be made applicable in the instant Appeal to the Appellant, because the mandatory period of 30 days for applying for the Certified Copy of the Impugned Order of 31.01.2020 expired much before the short date of the extended period of limitation laid down by the Judgment of the Hon ble Apex Court in the Suo Motu proceedings 2022 (1) TMI 385 - SC ORDER , due to Covid-19 situation, which was made effective with effect from 15.03.2020. When the Appellant himself has failed to comply with the first part of the intention of legislature of procuring the Certified Copy of the Judgment in order to enable him to file an Appeal as an Aggrieved Person in the light of the provisions contained under Rule 22 and if the cut off period of procuring of the Certified Copy, which was a condition precedent, has expired much prior to the benefit of limitation extended by the Hon ble Apex Court, the Appellant cannot contend that, he would be entitled for the benefit of limitation for the purposes of condonation of delay of about 451 days and that too, when according to his own records, the Appellant has for the first time applied for the Certified Copy of the Judgment only on 30.04.2021, though, he had knowledge of the proceedings, which is a fact already been established, by documents on record. The Appellant s inaction to apply for the Certified Copy despite of having the knowledge of proceedings, would create a legal bar against him in the light of the provisions contained under Section 114 of the Evidence Act, because, the presumption which has been given therein will run against the Appellant and the knowledge would be deemed to be attributed to him, prior to the expiry of the period of limitation which is mandatory for the purposes of applying for the Certified Copy and thus, the entire action of the Appellant would be barred by an Estoppel by Conduct . The Application for condonation of delay, lacks merit and the same is accordingly dismissed.

Issues Involved:
1. Determination of the period of limitation for filing an appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016.
2. Applicability of the Supreme Court's Suo Motu Writ Petition judgment on extending the limitation period due to the Covid-19 pandemic.
3. Requirement of applying for a certified copy of the judgment within the prescribed period of limitation.
4. Definition and implications of "party" and "person aggrieved" under the Insolvency and Bankruptcy Code, 2016.
5. Knowledge of proceedings and its impact on limitation.

Detailed Analysis:

1. Determination of the Period of Limitation:
The appeal was filed against an order dated 31.01.2020, but the appeal was lodged on 28.05.2021, well beyond the prescribed 30-day period under Section 61 of the IBC, 2016. The appellant argued that the period of limitation should commence from the date of knowledge of the order. However, the tribunal emphasized that the limitation period begins from the date of the order, not from when the appellant became aware of it. The appellant's delay of 451 days in filing the appeal was not excused, as the appellant failed to apply for a certified copy of the judgment within the original limitation period.

2. Applicability of the Supreme Court's Suo Motu Writ Petition Judgment:
The appellant sought to benefit from the Supreme Court's order extending the limitation period due to the Covid-19 pandemic, which suspended the running of limitation from 15.03.2020 to 28.02.2022. However, the tribunal held that this benefit could not be availed because the appellant did not apply for the certified copy within the statutory period of limitation, which expired before the commencement of the extended period on 15.03.2020.

3. Requirement of Applying for a Certified Copy:
The tribunal highlighted the necessity of applying for a certified copy of the judgment within the prescribed limitation period as per Rule 22(2) of the NCLAT Rules, 2016. The appellant's failure to do so barred them from claiming the extension of the limitation period. The act of applying for a certified copy is not merely a technical requirement but an indication of the appellant's diligence in pursuing the appeal.

4. Definition and Implications of "Party" and "Person Aggrieved":
The tribunal clarified that the term "party" includes any person interested in the appeal or application, as defined under the NCLT Rules, 2016. The appellant, being a member of the Committee of Creditors (CoC), was deemed to have knowledge of the proceedings and thus could not claim ignorance. The tribunal further distinguished between "party" and "person aggrieved," noting that the latter includes any individual affected by the judgment, even if not directly involved in the proceedings.

5. Knowledge of Proceedings and Its Impact on Limitation:
The tribunal rejected the appellant's claim of lack of knowledge, noting that email communications indicated the appellant's awareness of the proceedings. The appellant's participation in CoC meetings and the generation of communications from their email address established a presumption of knowledge. The tribunal emphasized that knowledge of the proceedings is crucial in determining the limitation period, and the appellant's failure to act within the prescribed period precluded them from benefiting from the extended limitation due to the Covid-19 pandemic.

Conclusion:
The tribunal dismissed the application for condonation of delay, as the appellant failed to apply for a certified copy within the prescribed period and could not benefit from the extended limitation due to Covid-19. Consequently, the appeal was dismissed as time-barred, and the connected interlocutory applications were closed.

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