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TMI Blog2021 (10) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... seeking to justify the delay in filing the Appeal do not render the present Appeal to be within Limitation. Accordingly, the present Appeals suffers from delay beyond the condonable period of 15 days under the proviso of Section 61 (2) of the IB code, hence liable to be dismissed at the threshold. The instant Appeal has been filed against the impugned order dated 22 October 2019, presented on 29 January 2020. Therefore, at the least, this Appeal is filed 98 days after passing of the impugned order, i.e. with a delay of 68 is beyond 30 days prescribed under Section 61 (2) of the IBC Code. Considering the statutory provision of Section 61 (2) of the IBC, this Appellate Tribunal has no power to condone the delay beyond 15 days after the prescribed 30 days provided for filing an Appeal. Therefore, the contention of the Appellant that the period from passing of the impugned order dated 22 October 2019 to the order dated 19 December 2019 should be considered a continuous cause of action is without any basis and not sustainable. Application rejected. - Company Appeal (AT) (Insolvency) No. 286 of 2020 - - - Dated:- 26-10-2021 - [Justice M. Venugopal] Acting Chairperson, [V. P. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Tribunal reconsidered its contentions, and the matter was again heard 05.12.2019, 12.12.2019 and 19.12.2019. After that, it was finally reserved for orders on 19.12.2019. This keeps the cause of action alive. Based on this, the Appellant claims that the present Appeal is within the Limitation of 30 days with a condonable grace period not exceeding fifteen days. 5. However, the Appellant has filed an Application IA 75/2020 for condonation of delay of 52 days in filing the Appeal. It is further contended that no prejudice would be caused to anyone if the present Application is allowed. However, grave prejudice would be caused to the Appellant in case the same is not permitted. 6. Appellant submissions 6.1 The Appellant contends that the learned Adjudicating Authority passed the impugned order on 22 October 2019. However, the certified copy of the impugned order was only provided to the Appellant on 19 November 2019. Thereafter, the Appellant immediately moved the letter dated 26 November 2019 before the Registrar of the NCLT, with the subject line speaking to the minutes of the order dated 22 October 2019 and 16 August 2019 (page 312 of the appeal paper book). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he IA 75 of 2020 by the Appellant, seeking the condonation condoning of delay of 41 days in filing the present Appeal. 7. Submissions of Respondent No 2 7.1 The Respondent No.2 is the Successful Resolution Applicant of the Corporate Debtor 'Maruti Koatsu Cylinders Limited'. The Resolution Plan of the Applicant subsequent to the approval of the Committee of Creditors by a vote of 90% was presented before the learned Adjudicating Authority under Section 30 (6) of the Insolvency and Bankruptcy Code, 2016 vide IA No.224 of 2019. The said Application was allowed, and the Resolution Plan was approved by the Hon'ble Adjudicating Authority vide the impugned order dated 22 October 2019. 7.2 Subsequent to the same, the Resolution Plan has been fully implemented. All payments of the Financial Creditors, under the Plan including the Appellant, have been made. That apart, the composition of the Board of Directors and the shareholding pattern has also been recasted as per the approved Resolution Plan. The Successful Resolution Applicant during/after implementation has also invested a sum of ₹ three crores towards the revival of the Corporate Debtor's business. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, the limitation period prescribed to prefer an appeal was 30 days. However, as per the proviso to Section 61(2) of the Code, the Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing the Appeal, but such period shall not exceed 15 days. Therefore, the Appellate Tribunal has no jurisdiction at all to condone the delay exceeding 15 days from the period of 30 days, as contemplated under Section 61(2) of the IB Code. Section 61(2) of the IB Code reads as under: Section 61(2) - Every Appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the Appeal, but such period shall not exceed fifteen days. 21. In the present case, even the Appellant applied for the certified copy of the order passed by the adjudicating authority on 8.4.2019, i.e., after a delay of 34 days. Therefore, even the cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded. 12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are but not thereafter used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the Application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase but not thereafter wholly otiose. No principle of interpretation would justify such a result. ************************** 32. Thus, considering the statutory provisions which provide that delay beyond 15 days in preferring the Appeal is uncondonable, the same cannot be condoned even in exercise of powers under Article 142 of the Constitution. 33. In view of the afore-stated settled proposition of law and even considering the fact that even the certified copy of the order passed by the adjudicating authority was applied beyond the period of 30 days and as observed hereinabove there was a delay of 44 days in preferring the Appeal whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under the IBC. While it is true that the tribunals, and even this Court, may choose to exempt parties from compliance with this procedural requirement in the interest of substantial justice, as re-iterated in Rule 14 of the NCLAT Rules, the discretionary waiver does not act as an automatic exception where litigants make no efforts to pursue a timely resolution of their grievance. The Appellant having failed to apply for a certified copy, rendered the Appeal filed before the NCLAT as clearly barred by Limitation. 23. The Appellant was present before the NCLT on 31 December 2019 when interim relief was denied and the miscellaneous Application was dismissed. The Appellant has demonstrated no effort on his part to secure a certified copy of the said order and has relied on the date of the uploading of the order (12 March 2020) on the website. The period of Limitation for filing an appeal under Section 61(1) against the order of the NCLT dated 31 December 2019, expired on 30 January 2020 in view of the thirty-day period prescribed under Section 61(2). Any scope for a condonation of delay expired on 14 February 2020, in view of the outer limit of fifteen days prescribed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply for a certified copy after the pronouncement of the order it seeks to assail. It is not open to a person aggrieved by an order under the IBC to await the receipt of the free certified copy under Section 421 (3) of the Companies Act 2013 read with Rule 50 of the NCLT and prevent Limitation from running. The litigant has to file its Appeal within 30 days, which can be extended up to a period of 15 days, and no more, upon showing sufficient cause. A sleight of interpretation of procedural rules cannot be used to defeat the substantive objective of the legislation that has an impact on the economic health of a nation. 8.9 Given the settled proposition of law as laid down by Hon'ble Supreme Court in the case of National Spot Exchange Ltd (supra), this Appellate Tribunal has no power to condone the delay for filing Appeal under section 61(2) of the Code beyond the period of 15 days from the date of completion of 30 days as provided under the Code. 8.10 Hon'ble Supreme Court has further observed that, considering the statutory provisions which provide that delay beyond 15 days in preferring the Appeal is uncondonable, the same cannot be condoned even in the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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