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2021 (10) TMI 1081 - AT - Insolvency and BankruptcyMaintainability of appeal - appeal filed within time limitation or not - power to review is an inherent power of the Tribunal or not - HELD THAT - The Appellant came to know of order of approval of Resolution Plan on 17.10.2019, the maximum period of 45 days will expire on 1.12.2019. Even if an exemption for period of 11 days spent in getting certified copy of order is given, the period of limitation will expire on 14.12.2019. Thus appeal filed on 27.12.2019 is clearly time barred - Even if starting date of limitation is taken from 18.10.2019, when Respondent No. 1 filed reply to the notice dated 23.9.2019 on the online portal of Income Tax Department informing Appellant of the approval of the Resolution Plan, the maximum prescribed 45 days period of limitation would expire on 2.12.2019. After excluding 11 days period that was spent in obtaining certified copy of the order, the limitation would expire on 13.12.2019. Even then the limitation appeal filed on 27.12.2019 is time barred. The Appellant was adequately informed and well aware of the initiation of CIRP and approval of the Resolution Plan and yet he did not file any claim with the Resolution Professional. The Learned Counsel for Applicant of IA No. 909 of 2020) has, therefore, emphatically stated that since the Appellant was well aware of the initiation of CIRP much before 9.12.2019, when he applied for obtaining certified copy of the Impugned Order, therefore, the appeal is barred by limitation of time. Appeal dismissed as being time barred.
Issues:
1. Condonation of delay in filing the appeal. 2. Applicability of Rule 11 of the NCLAT Rules, 2016 for review. 3. Interpretation of the Limitation Act, 1963 regarding the time limit for filing the appeal. Condonation of Delay: The appeal was initially filed by the Appellant within the time limit of 30 days from the date of receipt of the certified copy of the impugned order. However, the Respondent raised an objection that the appeal was time-barred. The Appellant argued that they were aware of the initiation of the Corporate Insolvency Resolution Process (CIRP) but took no steps to file the claim. The Respondent provided evidence that the Appellant was informed of the initiation of CIRP and the approval of the Resolution Plan through various communications. The Appellant claimed that the delay was condoned on reasonable grounds previously, and the Respondent's application was misconceived and sought a review under Rule 11 of the NCLAT Rules, 2016. Applicability of Rule 11 for Review: The Appellant contended that Rule 11 of the NCLAT Rules, 2016 does not provide for a review and that the power to review must be conferred by statute. Citing a previous judgment, the Appellant argued that the power vested under Rule 11 is to further the cause of justice and prevent abuse of process. The Appellant emphasized that the Tribunal's previous order had already addressed the delay issue, and any grievances should be addressed through a proper appeal as required by law. Interpretation of Limitation Act, 1963: The Respondent argued that the appeal was time-barred based on the Limitation Act, 1963. They presented evidence showing that the Appellant was aware of the order of approval of the Resolution Plan well before filing the appeal. The Respondent highlighted that the appeal was filed after the prescribed period of limitation had expired, even considering the time spent in obtaining the certified copy of the order. The Tribunal found that the appeal was indeed time-barred based on the facts presented by the Respondent in their application, which were not previously known to the Tribunal. In conclusion, the Tribunal granted the Respondent's application, holding that the appeal was time-barred and thus dismissed. The Tribunal emphasized that new facts presented through the Respondent's application, which were not previously disclosed, should be considered in the interest of justice. The decision was based on the interpretation of the Limitation Act, 1963, and the Tribunal's findings regarding the awareness of the Appellant about the CIRP initiation and Resolution Plan approval.
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