2024 (10) TMI 629 - AT - IBC

Seeking condonation of delay of 10 days in filing the present appeal - calculation of limitation period - HELD THAT - Admitted facts of this case are that the impugned order was passed on 02.03.2022 and in this regard, the Respondent has appended the cause list of 02.03.2022 as Annexure R3 with the reply in which the present appeal has been shown as for pronouncement of order, Sr. No. P1, CP No. (IB)219/ALD/2018 for order . It is admitted by the Appellant in the rejoinder that the order was pronounced in their presence. In such circumstances, the decision of the Hon ble Supreme Court delivered in the case of V. Nagarajan 2021 (10) TMI 941 - SUPREME COURT (LB) would apply which says that limitation shall start running from the date of order whereas the case set up by the Appellant in the application is that since the impugned order was uploaded by the Tribunal on 14.03.2022, therefore, the limitation shall be counted from the said date and thus there is a delay of 10 days in filing the present appeal. In order to overcome the difficulties being faced, the Appellant has developed a new story in order to take the advantage of Section 12 of the Limitation Act, 1963 as per which the period spent by the office in preparing the certified copy has to be excluded from the total period of limitation and in this regard, it is alleged that after the order was pronounced on 02.03.2022 the certified copy was applied which was made available on 16.03.2022 but it was mistakenly sent to the previous office address of the counsel at New Delhi and was misplaced. The Appellant has not applied for the certified copy again for the purpose of placing it on record. The story which has now been propounded and made a part of their rejoinder is totally unbelievable because had it been a situation as suggested, it would have been the first averment in the application itself instead of a plea in the rejoinder. The story propounded in the rejoinder is a made-up story at the instance of the Appellant which cannot be believed and as it has been held in the case of Lingeswaran Etc. 2022 (2) TMI 1358 - SUPREME COURT the limitation is to be condoned on a sufficient cause and not on equity, the Appellant cannot take any advantage of alleging that the Court should apply soft hand for the purpose of considering the application for condonation of delay. There are no merit in the present application, much less sufficient cause, for the purpose of condonation of delay, therefore, the application is found devoid of any merit and the same is hereby dismissed though without any order as to costs.

Summary

Issues:
Condonation of delay in filing the appeal under Section 61(1) of the Insolvency and Bankruptcy Code, 2016.

Analysis:
The appeal was filed seeking condonation of a 10-day delay in filing the appeal by the Unsuccessful Applicant against the dismissal of their application under Section 9 of the Insolvency and Bankruptcy Code, 2016. The Respondent argued that the appeal was filed beyond the permissible period of 45 days, citing the decision of the Supreme Court in the case of National Spot Exchange Limited. The Respondent contended that the limitation should be counted from the date of passing of the order, not from the date of knowledge. The Appellant, in their defense, claimed that the delay was due to the time taken to obtain the certified copy of the order, which was misplaced. They argued that this time should be excluded from the calculation of the limitation period.

The Tribunal considered the facts presented by both parties. It was established that the impugned order was passed on 02.03.2022, and the Respondent provided evidence to support this claim. The Appellant admitted in the rejoinder that the order was pronounced in their presence. The Tribunal applied the principle from the case of V. Nagarajan that the limitation period starts running from the date of the order. The Appellant's argument that the delay was due to obtaining the certified copy was deemed unconvincing. The Tribunal noted that the Appellant's new story in the rejoinder lacked credibility and was not presented in the initial application, indicating it was fabricated to suit their case.

Considering the evidence and arguments presented, the Tribunal concluded that the Appellant failed to establish a sufficient cause for the delay in filing the appeal. The Tribunal emphasized that condonation of delay should be based on a valid cause, not on equity. Therefore, the application for condonation of delay was dismissed for lack of merit. Consequently, as the appeal was not duly constituted due to the dismissal of the condonation application, the appeal itself was also dismissed.

In summary, the Tribunal found no merit in the Appellant's arguments for condonation of delay, as the reasons provided were deemed insufficient. The decision was based on legal principles and precedents established by the Supreme Court regarding the calculation of limitation periods and the necessity of showing a valid cause for condonation of delay.