2024 (11) TMI 837 - AT - IBC

Condonation of delay of 3 days in filing the appeal - Computation of limitation period for filing the appeal - whether the date of limitation is to be counted from the date of e-filing or the date of presentation of appeal? - HELD THAT - As per the provisions of Section 61 of IBC, any person who is aggrieved against the order passed by the Tribunal has a statutory right to file an appeal before the Appellate Tribunal. Section 61(2) provides statutory period of 30 days for filing such an appeal, however, if the proposed Appellant failed to file the appeal within a period of 30 days for some reason then Section 61(2) proviso gives another period of 15 days to file the appeal provided it satisfy the Appellate Tribunal that there was a sufficient cause for not filing the appeal in time. In no case, the period beyond 15 days can be extended. Since, the appeal has been filed by the Appellant on 30.05.2022 through e-filing and the hard copy was filed on 20.06.2022 though before coming into force the SOP dated 21.10.2022 which has been made effective from 01.11.2022, the SOP dated 21.10.2022 has been withdrawn by SOP dated 24.12.2022 and it has been ordered that limitation is to be counted from the date of e-filing, therefore, in view of the decision of the Hon ble Supreme Court in the case of Somdev Kappor 2013 (10) TMI 384 - SUPREME COURT where it has been held that the rules which are prevalent on the date when the application is considered are to be applied and not the date when the application is made, the application having been filed by the Appellant has to be considered in terms of SOP dated 24.12.2022 which is in operation at the time when the application for condonation of delay is being considered. The argument raised by Respondent No. 1 not agreed upon, that limitation is to be counted from the date of presentation of appeal at the counter because the issue of computation of limitation was first determined by way of SOP dated 21.10.2022 whereas the appeal was filed much earlier in both ways i.e. e-filing as well as by way of hard copy and the SOP dated 21.10.2022 was superseded/withdrawn by SOP dated 24.12.2022 as per which the limitation is to be counted from the date of e-filing. The objection raised by the Respondent is hereby overruled and since there is a delay of only three days in filing the appeal which has also been duly explained in detail in the application which is supported by an affidavit and the power to condone the said delay in terms of Section 61(2) proviso is with this Tribunal, therefore, the same is hereby condoned on being satisfied that sufficient reason has been assigned by the Appellant. The application is thus allowed.

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Computation of limitation period for filing the appeal.

Issue-wise Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:

The primary issue addressed in the judgment is the application for condonation of a three-day delay in filing the appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016. The appellant sought condonation of delay due to the late receipt of the certified copy of the impugned order and subsequent procedural delays, including the summer holidays of the Calcutta High Court. The appellant argued that the delay was not due to negligence and should not result in punishment. The tribunal acknowledged the appellant's justification, noting that the delay was minimal and adequately explained, thus exercising its discretion under the proviso to Section 61(2) of the Code to condone the delay.

2. Computation of Limitation Period for Filing the Appeal:

A significant issue was determining whether the limitation period should be computed from the date of e-filing or the date of presentation of the hard copy of the appeal. The tribunal examined the relevant provisions of the Insolvency and Bankruptcy Code, 2016, and the National Company Law Appellate Tribunal Rules, 2016, alongside the Standard Operating Procedures (SOPs) issued by the tribunal over time.

The tribunal referred to Rule 22 of the NCLAT Rules, which mandates the presentation of an appeal in hard copy at the filing counter, and Rule 103, which allows for e-filing. The tribunal noted that SOPs issued on various dates provided differing instructions on the computation of the limitation period. The SOP dated 03.01.2021 allowed e-filing but required hard copies to be filed as per the rules. The SOP dated 21.10.2022 initially stated that the limitation period should be computed from the date of presentation of the appeal but was later withdrawn by the SOP dated 24.12.2022, which clarified that the limitation should be computed from the date of e-filing, with hard copies to be filed within seven days of e-filing.

The tribunal considered the decision of the Hon'ble Supreme Court in Sanket Kumar Agarwal & Anr. Vs. APG Logistics Pvt. Ltd., which emphasized that the rules applicable at the time of consideration of an application should be applied. Consequently, the tribunal determined that the limitation period should be computed from the date of e-filing, as per the SOP dated 24.12.2022, which was in effect at the time of considering the application for condonation of delay.

The tribunal concluded that the appeal was filed within the permissible period when computed from the date of e-filing, thereby overruling the respondent's objection that the limitation should be calculated from the date of presentation of the hard copy. The tribunal condoned the three-day delay, finding sufficient cause for the delay, and allowed the application.

Conclusion:

The tribunal's decision to condone the delay was based on the application of the SOP dated 24.12.2022, which computed the limitation period from the date of e-filing. The tribunal emphasized the importance of disposing of appeals on their merits rather than technicalities, particularly when the delay is minor and adequately justified. The appeal was scheduled for hearing on 5th November 2024.