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2023 (6) TMI 416 - AT - Insolvency and BankruptcyCondonation of delay in filing the Appeal - exclusion of the period from 26.12.2022 to 01.05.2023 during which the Appellant - whether the Applicant is entitled for the benefit of Section 14 of the Limitation Act for purposes of the limitation for filing this Appeal under Section 61 of the Code? HELD THAT - The Law is well settled that even though Section 14 of the Limitation Act is not strictly applicable in the Appeal filed under Section 61 of the Code but the principles underlying Section 14 are clearly attracted. The Hon ble Supreme Court KALPRAJ DHARAMSHI ANR. VERSUS KOTAK INVESTMENT ADVISORS LTD. ANR. 2021 (3) TMI 496 - SUPREME COURT which was a case where the question of applicability of Section 14 of the Limitation Act in an Appeal filed under Section 61 of the Code came for consideration held in the said Judgment that principles underlying Section 14 of the Limitation Act are clearly applicable while considering the limitation for filing an Appeal under Section 61 of the Code - The scope and ambit of Section 14 of the Limitation Act have been considered and explained by Hon ble Supreme Court in several judgements. In Kalpraj Dharamshi case itself the Hon ble Supreme Court has noted the conditions that are required to be fulfilled for invoking the provisions. In Kalpraj Dharamshi case the Hon ble Supreme Court extended the benefit of Section 14 of the Limitation Act in the Appeal filed under Section 61 of the Code before this Appellate Tribunal. The expression used in Section 14 are defect of jurisdiction or other cause of a like nature . The expression other cause of a like nature has been explained and examined in large number of cases by Hon ble Supreme Court - reference made to the Judgment of the Hon ble Supreme Court in India Electric Works Ltd. vs. James Mantosh Anr. 1970 (9) TMI 105 - SUPREME COURT , wherein the Hon ble Supreme Court had occasion to consider the ambit and scope of Section 14 of the Limitation Act and both the expressions, from defect of jurisdiction or other cause of like nature came for consideration. The Hon ble Supreme Court held that if the above words are read alongwith expression is unable to entertain it , they would denote that the defect must be of such a character as to make it impossible for the Court to entertain the suit or application either in its inception or at all events as to prevent it from deciding it on the merits. When Hon ble Supreme Court in Kalpraj Dharamshi has held that Appellant who has filed an Appeal under Section 61 is entitled for benefit of proceeding which was being prosecuted in the High Court under Article 226 which writ proceedings were also dismissed on the ground of availability of the alternative remedy - following the Judgment of the Hon ble Supreme Court, the dismissal of writ petition is on the ground something similar or analogous and the benefit of Section 14 cannot be held to be denied to the Appellant. Power of attorney - HELD THAT - The fact of the matter is that power of attorney was executed on 01st August, 2022 which has been brought on record and we for the purposes of prosecuting this Appeal, are not persuaded to accept the submission of the Respondent that since power of attorney was executed on stamp paper which was purchased earlier, the Appeal and Application rejected on this ground. Power of attorney has been executed by the Appellant with regard to the Corporate Debtor in question, the objection of the Respondent to reject the Delay Condonation Application on this ground is not persuaded with. The Appellant is entitled for the exclusion of period from 26th December, 2022 to 01st May, 2023. The Appeal having been e-filed on 19th May, 2023 and after excluding the aforesaid period by giving benefit of Section 14 of the Limitation Act to the Appellant, this Appeal under Section 61 of the Code has to be treated to be filed within 30 days from the date of the Impugned Order. Appeal is held to be filed within limitation - application disposed off.
Issues Involved:
1. Condonation of delay in filing the appeal. 2. Applicability of Section 14 of the Limitation Act in the context of filing an appeal under Section 61 of the Insolvency and Bankruptcy Code (IBC). Summary: Issue 1: Condonation of Delay in Filing the Appeal The Appellant sought condonation of delay for the period from 26.12.2022 to 01.05.2023, during which they were prosecuting a writ petition before the Punjab and Haryana High Court. The appeal was filed after the High Court disposed of the writ petition, granting liberty to the Appellant to file an appeal before the Appellate Tribunal within two weeks. Issue 2: Applicability of Section 14 of the Limitation Act The core question was whether the Appellant is entitled to the benefit of Section 14 of the Limitation Act for the purpose of computing the limitation period for filing the appeal under Section 61 of the IBC. The Tribunal noted that while Section 14 is not strictly applicable, its underlying principles are relevant. The Tribunal cited the Supreme Court's judgment in Kalpraj Dharamshi & Anr. vs Kotak Investment Advisors Ltd. & Anr., which held that the principles underlying Section 14 of the Limitation Act are applicable to appeals under Section 61 of the IBC. The Tribunal emphasized that the Appellant prosecuted the writ petition in good faith and with due diligence, and the writ petition was not dismissed due to a defect of jurisdiction but on the ground of an alternative remedy being available. Detailed Findings: - The Appellant filed the writ petition due to the non-functioning of the Appellate Tribunal during the winter vacation, which was considered a bona fide action. - The High Court, upon disposing of the writ petition, granted liberty to the Appellant to file an appeal within two weeks, indicating that the writ proceedings were prosecuted in good faith. - The Tribunal rejected the Respondent's objections regarding the power of attorney and the good faith prosecution of the writ petition, considering the power of attorney valid for the purpose of prosecuting the appeal. Conclusion: The Tribunal allowed the condonation of delay application, granting the Appellant the benefit of Section 14 of the Limitation Act. The appeal was treated as filed within the limitation period, and the application I.A. No. 2315 of 2023 was disposed of accordingly.
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