2024 (4) TMI 1065 - AT - Insolvency and Bankruptcy

Delayed filing of appeal - relevant date for calculation of time limitation - from the date of pronouncement of the Judgment or from the date of uploading of the judgement - Maintainability of section 9 application - initiation of CIRP Proceedings - HELD THAT - Under the NCLAT Rules, the provision for preferring an Appeal is contemplated, under section 61, which provides for the time period during which appeal could be filed before the Appellate Tribunal i.e. within the 30 days of passing of the Order, the same could be registered only based on the Certified Copy of the Order upon being produced as per Rule 22, as certified copy has be filed of along with the Appeal - The issue would be as to whether the Free Copy which has been issued under Rule 50 of the NCLT Rules, cannot be taken as to be the Certified Copy under the Provisions of section 22(2) to enable to file an appeal under section 61. It has not been the case of the Appellant, that the Appeal was accompanied with the Certified Copy as contemplated under Rule 22 of the NCLT Rule and that the Certified Copy would be as provided under sub section 9 of section 2 of the NCLT Rules, which could be taken as to be the basis for the purpose of determining the period of limitation. The limitation to file appeal would be determined only from the date of pronouncement of the Judgment i.e, dated 31.10.2023, uploading of the Impugned on 09.11.2023 it becomes insignificant. It is admitted case of the Appellant that he has applied for the free copy only on 14.11.2023 by presenting an application before the Registry of the court. The limitation for filing an Appeal has to be considered from the date of pronouncement of Judgment and not the date on which the Appellant received the Certified Copy, but since he applied Certified Copy on 21.03.2024 the Appeal will not be within the period prescribed under Proviso sub section 2 of Section 61 of the Code. Because, the Appeal itself for its registration was presented before the Registry on 26.12.2023, that too despite of the fact, that the Appellant had already received the Free Copy on 14.11.2023. Even, according to the case of the Appellant, since he received the knowledge and the Free Copy of the Judgment was received by him on 14.11.2023, the appeal since presented on 26.03.2024, would be barred by limitation. As Condone Delay Application carries no justification as to why the Appeal was filed on 26.12.2023 i.e. beyond the prescribed period of limitation under Law. Even, according to the Appellant himself, the appeal has been filed with 12 days delay. The Appeal is barred by limitation, hence the Condone Delay Application i.e. IA No.95/2024 would stand rejected and consequences there to the Company Appeal (AT) (CH) (Ins) No.29/2024, M/s. Whitehand Services Vs M/s. RD Buildtech and Developers (Karnataka) Pvt. Ltd. would too stand rejected. Appeal dismissed.

Summary

Issues involved:
The issues involved in the judgment are the initiation of CIRP proceedings under section 9 of the Insolvency and Bankruptcy Code, 2016, and the condonation of delay in filing the appeal before the Appellate Tribunal.

Initiation of CIRP Proceedings:
The Appellant, an Operational Creditor, filed an Application under section 9 for initiation of CIRP Proceedings against the Corporate Debtor due to disputes over services provided and delayed payments. Despite issuing notices, the Adjudicating Authority rejected the application, directing the parties to settle their claim. Subsequently, the Appellant filed a second company petition after a recall was rejected, seeking to initiate CIRP. However, the petition was rejected on the grounds that the claim was barred by section 4 of the Insolvency and Bankruptcy Code, 2016, which enhanced the pecuniary jurisdiction for initiating proceedings under section 9 to Rs.1 Crore. The Appellant sought Condonation of Delay for filing an appeal, citing a delay in receiving the Impugned Order and filing the appeal beyond the prescribed period.

Condonation of Delay in Filing Appeal:
The Appellant filed an application seeking Condonation of Delay of 12 days in filing the appeal, stating that the delay was due to the late uploading of the Impugned Order. The Appellant argued that the Appeal should be considered based on the Certified Copy of the Order, as per the NCLAT Rules. However, the Tribunal found that the appeal was filed beyond the period of limitation provided under the Law, as the Certified Copy was applied for after the prescribed period. Despite the Appellant's claim of receiving the Free Copy on time, the delay in applying for the Certified Copy led to the appeal being barred by limitation. Consequently, the Condonation of Delay Application was rejected, and the appeal was deemed barred by limitation.