9911796707
TMI Blog2022 (11) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... uct will satisfy the test of prosecuting a Given Proceeding in a Good faith and Due diligence. In short, if a Good faith is established, Section 14 of the Limitation Act, 1963, can be pressed into service, in the considered opinion of this Tribunal. It is significantly pointed out by this Tribunal that the period of Limitation for filing a Suit / Appeal, is fixed by Law / Statute / Code and ordinarily, it cannot be deemed to be excluded or extended, automatically or as a matter of routine. The Petitioners / Appellants have indulged in Bonafide Litigious Activity, in preferring the petition, before the Hon ble High Court of Kerala, this Tribunal, by construing the ingredients of Section 14 of the Limitation Act 1963, in a liberal manner and by applying Equity, permits the exclusion of period from ₹ 25.01.2022 till 22.06.2022 (147 days), in computing the Period of Limitation - application disposed off. - IA No.990/2022 in Company Appeal (AT)(CH)(Ins) No.337/2022 - - - Dated:- 24-11-2022 - [Justice M. Venugopal] Member (Judicial) And [Naresh Salecha] Member (Technical) For the Appellants : Mr. S. Easwaran, Advocate For the Respondent No.1 : Mr. Varun Srinivas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel for the Petitioner adverts to the fact that in Writ Appeal No.537 of 2022, it was ordered that the period spent , before the Hon ble High Court of Kerala , in prosecuting the case would be taken note of, by the Appellant Tribunal , while considering the Petition / Condonation of Delay . In this connection, the Learned Counsel for the Petitioner points out that in the Decision of the Hon ble Supreme Court of India in Kalparaj Dharamshi and another v Kotak Investment Advisors Limited and another reported in (2021) 10 SCC at Page No.401, wherein it was observed and held that the Provisions of Section 14 of the Limitation Act, 1963, will apply to the Proceedings before the Tribunal . 6. The clear cut stand of the Petitioners is that, the instant Comp. App. AT (Ins) No.337/2022, should have been filed on or before 25.02.2022 and that the Appellant Tribunal , can Condone the Delay , if sufficient cause , is shown for a period not exceeding to 15 Days . In this regard, it is the fervent plea of the Petitioners that the period from 25.01.2022 (the date on which the impugned order MA/76/KOB/2020 in IBA/240/KOB/2019 of the Adjudicating Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Act 1963, then, the instant Comp. App. (AT)(CH)(Ins) No.337/2022 is within the time and that the time taken for filing the Writ Petition is One Day time taken for preferring an Appeal before this Tribunal , is 14 days from 22.06.2022 and further 147 days is excluded, then, the Appeal is presented, well within the specified period prescribed under Section 61 of the Insolvency Bankruptcy Code, 2016. 9. The Learned Counsel for the Petitioners / Appellants contends that the 1st Respondent s Plea , that the instant Comp. Appl. (AT)(CH)(Ins) No.337/2022 is not filed within 14 days from the date of the Hon ble Division Bench Judgment in Writ Appeal No.537 of 2022, is an incorrect one , because of the fact that there was no Direction to prefer an Appeal , within Two Weeks , and further that the Interim Order , was extended for a period of Two Weeks , so as to enable the Petitioners / Appellants to prefer an Appeal . 10. The Learned Counsel for the Petitioners refers to the Order of this Tribunal dated 15.03.2021 in IA/774/2020 in Comp. App. (AT) (INS) No.294/2020, whereby and whereunder, Section 14 of the Limitation Act 1963, was applied and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailability of alternate and equally efficacious remedy would reveal, that the said writ petition was hotly contested between the parties and by an order running into 32 pages, the Division Bench of the Bombay High Court dismissed Kotak Investment Advisors Ltd. v. Krishna Chamadia, 2020 SCC OnLine Bom 197, the petition relegating the petitioner therein (i.e. KIAL) to avail of an alternate remedy available in law. 84. This Court clearly held, that the decision in Union of India v. Popular Construction Co., (2001) 8 SCC 470 cannot be construed to mean as a ruling, that provisions of Section 14 of the Limitation Act are also not applicable to an application challenging an award under Section 34 of the Act. It has been held, that in the Arbitration Act, there is no express provision excluding application of the provisions of Section 14 of the Limitation Act to an application filed under Section 34 of the Arbitration Act for challenging the award. It has further been found, that there is fundamental distinction between the discretion to be exercised under Section 5 of the Limitation Act and exclusion of the time provided in Section 14 of the said Act. It was held, that the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e National Company Law Appellate Tribunal and a further period of 15 days is provided only if sufficient cause is made out for preferring the Appeal within the extended period. Furthermore, the aspect of Consolidated Appeal does not arise in any event, the application for condonation of delay , is liable to be dismissed, of course with costs. 29. One cannot ignore a prime fact that the term sufficient cause implies no negligence, nor inaction nor want of bonafides on the part of the litigant. In fact, in excluding the time, the period starting from the institution of former proceeding till the end of the said proceeding, would be calculated. If a litigant was bonafide prosecuting his rights in a Court / Tribunal due to wrong advise, the limitation shall remain in limbo , which is the underlying Principle of Section 14 of the Limitation Act, 1963. 30. The essence of sufficient cause is whether it was an act of prudence or reasonable man on the part of person filing an Appeal . It is to be taken note of that whether the Appellant had acted with reasonable diligence in prosecuting his Appeal . 31. It is to be remembered that if an individual permits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 224 days 1st Respondent s contentions: 13. The Learned Counsel for the 1st Respondent / Bank submits that the instant Comp. App. (AT)(CH)(Ins) No.337/2022, should have been filed by the Petitioners / Appellants , within 30 Days from the date of the impugned order dated 21.01.2022, passed by the Adjudicating Authority (`National Company Law Tribunal , Kochi Bench, Kerala), which was not preferred by the Petitioners / Appellants and there has occasioned a delay of 147 Days . 14. According to the Learned Counsel for the 1st Respondent, the Petitioners / Appellants had filed a Writ Petition No.2832/2022, before the Hon ble High Court of Kerala, on 26.01.2022, even though the impugned order was pronounced on 21.01.2022. However, the aforesaid Writ Petition came to be dismissed on 22.04.2022. 15. On behalf of the 1st Respondent, it is brought to the Notice of this Tribunal , that a Writ Appeal No.537/2022 , was filed by the Petitioners / Appellants , before the Hon ble High Court of Kerala, challenging the Order , before the Hon ble High Court of Kerala dated 22.04.2022. On 22.06.2022, in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in dispute, that immediately after the order was passed on 28.11.2019 Connect Residuary (P) Ltd. v. Ricoh (India) Ltd., 2019 SCC OnLine NCLT 14842 by NCLT, KIAL preferred a writ petition being Writ Petition (L) No. 3621 of 2019 before the Division Bench of the Bombay High Court on 11.12.2019. The said writ petition came to be dismissed on 28.1.2020 Kotak Investment Advisors Ltd. v. Krishna Chamadia, 2020 SCC OnLine Bom 197 on the ground, that KIAL had an alternate and efficacious remedy available under Section 61 of the I B Code and as such, it was relegated to the alternate remedy available in law. 18. It is represented on behalf of the 1st Respondent that in the present Case, the Petitioners / Appellants , had not made efforts, to apply for a Certified Copy of the impugned order , as they had stated in their Notes of Submissions , as under:- Still further it was stated before this Tribunal that Certified Copy of the order was not produced. Certified Copy of the order was produced under instructions from Registry on 15.09.2022. Therefore the said objection is also not sustainable. 19. The Contention advanced on behalf of the 1st Respondent is, that in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants along with the instant Comp. App. (AT)(CH)(Ins) No.337/2022, and further that the Petitioners / Appellants had filed a Special Leave to Appeal (C) No(s).12357/2022, before the `Hon ble Supreme Court of India , assailing, the Order dated 22.06.2022, passed by the Hon ble High Court of Kerala in Writ Appeal No.537/2022. The Hon ble Supreme Court of India, on 29.07.72022, had dismissed the Special Leave Petition, finding no grounds to interfere with the impugned judgment and order, passed by the Hon ble High Court. 23. The Learned Counsel for the 1st Respondent takes a stand that in the present Case, the impugned order was passed by the Adjudicating Authority (`National Company Law Tribunal , Kochi Bench, Kerala) on 21.01.2022 in MA/76/KOB/2020 in IBA/280/2019(CB), but the instant Comp. App. (AT)(CH)(Ins) No.337/2022 was lodged only on 06.07.2022 and that too, without the Certified Copy of the Order . In short, non-filing of the Certified Copy of the Impugned Order , together with the instant Comp. App. (AT)(CH)(Ins) No.337/2022 is a fatal case of the Petitioners / Appellants . 24. Also, on behalf of the 1st Respondent, a reference is made to Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rest 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. 26. The Learned Counsel for the 1st Respondent refers to the Judgment of this Tribunal in the matter of Johnson Lifts Pvt. Ltd. V Tracks Towers Infratech Pvt. Ltd. dated 19.10.2022 (vide Comp. App. (AT) (CH) (Ins) No.370/2022) (MANU / NL / 0819/2022), wherein at Paragraph 12 , it is observed as under:- 12. ``Furthermore, in the teeth of the decision of the Hon ble Supreme Court in V. Nagarajan Versus SKS Ispat and Power Ltd. Ors. reported in 2022 SCC at Page 244 and also in the light of the order dated 12.10.2022 in the Comp. App. (AT) (Insolvency) No.1169 of 2022 between Exide Industries Ltd V. Jitender Kumar Jain, Resolution Professional of Morakhia Copper Alloys Pvt. Ltd. passed by the Principal Bench, New Delhi, this Tribunal comes to a resultant conclusion that the instant Comp. App. (AT)(CH)(Ins) No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ints out that the Hon ble Supreme Court in Civil Appeal No.3327 of 2020 in the matter in between V. Nagarajan vs Sks Ispat and Power Limited and others at Paragraph 33, had held that the Limitation starts from the date of the Pronouncement of Order and the onus, on the Appellant to convince and establish, before the Tribunal , that the Appeal , is within the Limitation and also any other Proceedings before any other Code , will not save Limitation . 31. The Learned Counsel for the 3rd Respondent comes out with the Plea that the Petitioners / Appellants are endeavouring, to drag on the Legal Proceedings in every Forum , by suppressing the material fact and hence, prays for dismissal of the Condone Delay Application . Bonafide Litigious Activity :- 32. At this juncture, this Tribunal , pertinently points out that the Legislature , has enacted Section 14 of the Limitation Act, 1963, to exempt a particular / certain period , covered by a Bonafide Litigious Activity . Inherently, there is an element of Mistake , in the invocation of Section 14 of the Limitation Act, 1963. As a matter of fact, in extending the benefit of the ingredients o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od from ₹ 25.01.2022 till 22.06.2022 ( 147 days ), in computing the Period of Limitation , and consequently `disposes of the IA/990/2022, without Costs. Company Appeal (AT)(CH)(Ins) No.337/2022 Justice M. Venugopal, Member (Judicial): For the Appellants : Mr. S. Easwaran, Advocate For the Respondent No.1 : Mr. Varun Srinivasan, Advocate (For Caveator) For the Respondent No.2 : Mr. Shinu J. Pillai, Advocate For the Respondent No.3 : Mr. A.G. Sathyanarayana, Advocate (For Liquidator) JUDGMENT (Virtual Mode) Justice M. Venugopal, Member (Judicial): The Appellants have preferred the instant Comp. App. (AT) (CH) (Ins) No.337/2022, before this Appellate Tribunal , as an Aggrieved Person , on being dissatisfied, with the impugned order dated 22.01.2022 in MA/76/KOB/2020 in IBA/240/KOB/2019, passed by the Adjudicating Authority (`National Company Law Tribunal , Kochi Bench, Kerala). 2. At the outset, this Tribunal , points out that Limitation is undoubtedly an issue of Jurisdiction . To put it succinctly, Section 3 of the Limitation Act, 1963 , places an embargo , on the `Court , to entertain a suit , preferring an App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be on or before 05.07.2022 . However, the E-Portal of this `Tribunal , shows that the instant Comp. App. (AT) (CH) (Ins) No.337/2022 was filed on 06-07-2022 22:07:946 . As such, there is a delay of One Day , in preferring the instant Comp. App. (AT) (CH) (Ins) No.337/2022, before this Appellate Tribunal . Hence, this Tribunal , comes to a consequent conclusion that the Appellants have preferred the instant Comp. App. (AT) (CH) (Ins) No.337/2022, with a further delay of One Day , by not adhering to the tenor and spirit of the Judgment of the Hon ble High Court of Kerala in W.A. No.537/2022, in a meticulous and scrupulous manner. Viewed in the above perspective, the filing of the instant Comp. App. (AT) (CH) (Ins) No.337/2022 by the Appellants , per se , is beyond the prescribed time limit , granted by the Hon ble High Court of Kerala in its Judgment in WA/537/2022 dated 22.06.2022 and, therefore, the said Comp. App. (AT) (CH) (Ins) No.337/2022, is not entertained by this Tribunal and the same is rejected . No Costs. The connected IA/907/2022 (For Urgent Listing ) IA/758/2022 (For Stay ) and IA/759/2022 (For Exemption ) are Closed. - - TaxTMI - T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
