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2024 (3) TMI 696 - AT - Insolvency and BankruptcySeeking condonation delay of 41 days in filing the present appeal - Sufficient reasons for delay or not - Admission of section 9 application - initiation of CIRP - HELD THAT - Any person aggrieved by any order of the Adjudicating Authority is vested with the statutory right of filing an appeal. However, the statutory right to file the appeal is required to be exercised within a period of 30 days of the impugned order before this Tribunal. If for certain reasons the right to file appeal is not exercised within the prescribed 30 days, the proviso to Section 61 (2) can be invoked which proviso provides that the appeal can still be filed subject to such appeal being filed up to a further period of 15 days only. The statutory construct is absolutely clear and unambiguous that the limitation period provided under Section 61(2) of IBC is 30 days which is extendable by a maximum of 15 days. Thus, no appeal can be filed after the expiry of the extended period of 15 days and that any appeal filed within the extended limitation period can be admitted only after satisfying the Appellate Tribunal that there was sufficient cause justifying the delay of 15 days. IBC by virtue of being a special statute, this Tribunal is not empowered to condone any delay beyond the statutory prescriptions in IBC containing a provision for limitation. This legal precept has been squarely laid down by the Hon ble Supreme Court and for this purpose reference made to the judgement of the Hon ble Supreme Court in Kalpraj Dharamshi vs Kotak Investment Advisors Ltd 2021 (3) TMI 496 - SUPREME COURT wherein it has been noticed that IBC being a special statute, for purposes of calculating the period of limitation to file an appeal, the governing section shall be Section 61 of the IBC. Section 61 of the IBC has to be interpreted keeping in mind the overall purpose and object of the IBC which inter-alia includes timely resolution of the CIRP. That being an avowed objective of this legislation and it being settled law that for purposes of calculating the period of limitation to file an appeal in any IBC proceeding, the governing Section shall be Section 61 of the IBC, the submission of the Appellant that the period of limitation shall commence for filing the appeal when the Appellant became aware of the order is untenable. Undisputedly, the present impugned order was pronounced on 22.11.2023. Thus, limitation for filing the appeal starts from 22.11.2023 and does not depend upon when the Appellant becomes aware of the order. The date on which the order is pronounced is to be excluded from the calculation of limitation in terms of Section 12(1) of the Limitation Act. The 30 days period comes to an end on 22.12.2023 and further period of 15 days comes to an end on 07.01.2024. The Appeal having been filed on 01.02.2024, the appeal has clearly been filed with a delay of more than 15 days from the date of expiry of limitation - the jurisdiction to condone the delay is limited to only 15 days under Section 61(2) of IBC, hence, the delay condonation application cannot be entertained. The delay condonation application deserves to be dismissed. In result, the delay condonation application is dismissed and the Memo of Appeal is rejected.
Issues Involved:
1. Condonation of delay in filing the appeal. 2. Knowledge of the impugned order and its impact on the limitation period. 3. Applicability of Section 61 of the Insolvency and Bankruptcy Code (IBC) regarding the limitation period. Summary: Issue 1: Condonation of Delay in Filing the Appeal The Appellant filed an appeal u/s 61 of the Insolvency and Bankruptcy Code (IBC) against the order dated 22.11.2023 by the Adjudicating Authority (NCLT, Mumbai Bench-VI) admitting the Corporate Debtor into Corporate Insolvency Resolution Process (CIRP). The Appellant sought condonation of a 41-day delay in filing the appeal, citing reasons such as lack of knowledge of the proceedings, Christmas holidays, bereavement in the family, and chronic illness. The Appellant argued that the limitation period should be counted from the date of awareness of the order (06.12.2023) and that some time should be excluded due to holidays and personal reasons. Issue 2: Knowledge of the Impugned Order and Its Impact on the Limitation Period The Respondent No. 1 contended that the Appellant was aware of the proceedings and the impugned order, evidenced by communications and attendance at the first Committee of Creditors (COC) meeting. They argued that the Appellant's claim of being unaware was unfounded and that the delay in filing the appeal was beyond the permissible period. The Respondent relied on several judgments to support their stance that the appeal should be dismissed due to the delay. Issue 3: Applicability of Section 61 of the IBC Regarding the Limitation Period The Tribunal emphasized that u/s 61 of the IBC, an appeal must be filed within 30 days of the impugned order, extendable by a maximum of 15 days for sufficient cause. The Tribunal referred to multiple Supreme Court judgments underscoring the stringent time-frame of the IBC and the need to avoid delays. It was highlighted that the limitation period starts from the date of the order, not from the date of knowledge of the order. The Tribunal noted that the Appellant had received the impugned order via email and had the opportunity to file the appeal within the prescribed period but failed to do so. Conclusion: The Tribunal concluded that the delay in filing the appeal was beyond the condonable period of 15 days as stipulated u/s 61(2) of the IBC. The arguments presented by the Appellant, including the claim of not being aware of the order and the impact of holidays, were found to be unconvincing. Consequently, the delay condonation application was dismissed, and the Memo of Appeal was rejected.
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