2023 (12) TMI 485 - AT - Insolvency and Bankruptcy

Doctrine of merger - Application for condonation of delay in filing of the Appeal - Preferential Transaction - Appellant contends that since the Appellant has already filed an application, the time taken during the period Application was pending should be excluded - by virtue of subsequent order dated 17th August, 2023, the earlier order shall merge and limitation should be counted from 17th August, 2023 or not? - HELD THAT - The Judgment which has been relied by Learned Counsel for the Appellant in Ashok Tiwari 2023 (11) TMI 313 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI was case where Appeal was filed against the subsequent order dated 12th May, 2023 which was an order passed on application filed by the Appellant for rectification of the earlier order dated 15th February, 2023. The rectification application was decided on 12th May, 2023 and the Appeal which came for consideration before the Tribunal was considered against the subsequent order dated 12th May, 2023. Observations were made by the Court were in reference to that context. Present Appeal is not against the subsequent order i.e. 17th August, 2023 rather the present Appeal is against the earlier order dated 02nd May, 2023. Hence the Judgment of this Tribunal in Ashok Tiwari does not render any help to the Appellant. In the case of DSR Steel Pvt. Ltd. 2012 (5) TMI 592 - SUPREME COURT , the Hon ble Supreme Court was considering question of review application which review application was filed under the provisions of Electricity Act, 2003. There was power of review conferred on the commission as has been noticed in the Judgment of the Hon ble Supreme Court. In the above context, the Hon ble Supreme Court laid down preposition as noted in paragraph 25. Present is a case which is covered by Paragraph 25.3 of the above judgment where the Hon ble Supreme Court has clearly held that even a case of rejection of review the original order has to be challenged within time stipulated by law and original decree not the order requesting the review can be taken for the purpose of limitation. Present is not a case where there was any modification of the Order dated 2nd May, 2023 more so present is not a case of review because the Tribunal does not have jurisdiction to review its Judgment, in the clarification order issued on 17th August, 2023, it is opined that this Appeal having been filed beyond 15 days after expiry of the limitation and our jurisdiction to condone only 15 days hence the Delay Condonation Application is dismissed. Appeal dismissed.

Summary

Issues involved:
The issue involves the condonation of delay in filing an appeal against an order passed by the Adjudicating Authority regarding a Preferential Transaction Application. The main contention is whether the limitation for filing the appeal should be counted from the date of the original order or a subsequent clarification order.

Delay Condonation Application:
The application was filed for condonation of delay in filing the Appeal against the Order dated 2nd May, 2023, which directed the Appellant to contribute a sum as part of a Preferential Transaction Application. The Appellant sought modification of the order and requested interim reliefs. A subsequent application was filed and rejected on 17th August, 2023, leading to the filing of the present Appeal challenging the initial order.

Contentions of the Parties:
The Appellant argued that the limitation for filing the Appeal should commence from 17th August, 2023, after the subsequent application was decided. The Respondent contended that the limitation should start from 2nd May, 2023, the date of the original order. The Appellant relied on legal judgments to support their argument for counting the limitation from the subsequent order.

Court's Analysis:
The Tribunal considered the submissions of both parties and reviewed the record. It was noted that the original order was passed on 2nd May, 2023, and the Appellant was present during the hearing. The question of whether the subsequent order dated 17th August, 2023, should impact the limitation period was examined.

Merger of Orders:
The Tribunal examined the subsequent order dated 17th August, 2023, which clarified that Respondent No. 6 had filed a reply earlier. The court emphasized that there was no basis for the merger of the original order with the subsequent clarification order. Therefore, the limitation for filing the Appeal should be calculated from the date of the initial order.

Legal Precedents:
The Appellant's reliance on legal judgments such as "Ashok Tiwari" and a Supreme Court judgment regarding review applications was considered. The Tribunal differentiated the present case from the cases cited by the Appellant, emphasizing that the current situation did not involve a review application and the original order had to be challenged within the stipulated time frame.

Decision:
Based on the analysis and legal principles discussed, the Tribunal dismissed the Delay Condonation Application as the Appeal was filed beyond the permissible time limit. Consequently, the Memo of Appeal was rejected, affirming that the limitation should be counted from the date of the original order dated 2nd May, 2023.