9911796707
TMI Blog2022 (12) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... , 443, 444, 445, 454, 455,457, 470 & 215 of 2020 , TA No. 30 to 37 of 2021, TA No. 50 of 2021 - - - Dated:- 6-12-2022 - [Justice M. Venugopal] Member (Judicial) And [Naresh Salecha] Member (Technical) For the Appellant : Mr. E. Om Prakash, Senior Advocate For Ms. Madhusmita Bora, Advocate For the Respondents : Mr. Ravi Rajagopalan, Advocate for R-1/Erstwhile RP. Mr. P.H. Arvindh Pandian, Senior Advocate For R2/ Successful Resolution Applicant For Ms. Anannya Gosh, Ms. Mrinalini Misra, and Ms. Ragha Sudha, Advocates For R2/ Successful Resolution Applicant JUDGMENT (Virtual Mode) NARESH SALECHA, MEMBER (TECHNICAL) The Present Appeals are filed against the common impugned order dated 13.12.2019, passed in MA/ 554/ 2019, MA/ 877/ 2019, MA/ 630/ 2019, MA/ 879/ 2019, MA/ 874/ 2019, MA/ 626/ 2019 MA/ 629/ 2019, MA/ 878/ 2019, MA/ 170/ 2019 and MA/ 625/ 2019 in CP/ 193/ IB/ 2018 by the Adjudicating Authority (National Company Law Tribunal, Chennai Bench), whereby, the Adjudicating Authority had dismissed the Miscellaneous Applications , filed under Insolvency Bankruptcy Code, 2016 (in short I B Code, 2016 ) Brief Facts: 2. Vipras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , claimed by the Financial Creditors , etc. 7. The Appellants have submitted that the impugned order was pronounced on 13.12.2019, however certified copy was delivered to the Appellants on 03.02.2020 and the appeal was filed on 02.03.2020 as such the appeals have been filed within the limitation period. 8. The Learned Counsel for the Respondent No. 1 however have taken the plea that the appeals cannot be entertained since these are barred by the limitation , as these fails to meet the requirements, as stipulated in Section 61(2) of the I B Code, 2016. 9. Since, the initial hurdle of the limitation is required to be looked into, this Appellate Tribunal , in this Judgment , examines the same, as it goes to the root of the matter of maintainability of these Appeals . 10. Before proceeding further, it is therefore warranted, to look into the specific provisions regarding the limitations as provided in I B Code, 2016 , along with the Rule 22(2) of National Company Appellate Tribunal Rules 2016 , further relevant and comparable rules on the subject including the Companies Act, 2013 . 22. Presentation of appeal.- (1) Every appeal shall be presented in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insolvency resolution process costs have not been provided for repayment in priority to all other debts; or (v) the resolution plan does not comply with any other criteria specified by the Board. (4) An appeal against a liquidation order passed under section 33 may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order. [emphasis supplied] 11. From above Section 61(2) of the I B Code, 2016, that an Appeal , is required to be filed, within 30 days, before this Appellate Tribunal . However, as per proviso to Sub Section (2) of Section 61 of the I B Code, 2016 this Appellate Tribunal may allow further period not exceeding 15 days, based on the Appeal , filed before it provided sufficient cause for non filing the Appeal have been submitted. This, however, does not clarify as to 30 days period shall be counted w.r.t. which date in contrast to similar provision made under Section 421 of the Companies Act, 2013 which reads as under : 421. Appeal from orders of Tribunal - (1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal. (2) No appeal shall lie to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ispat and Power Limited and Ors. (2022) 2 SCC, reads as under: 21. The answer to the two issues set out in Section C of the judgement- (i) when will the clock for calculating the limitation period run for proceedings under the IBC; and (ii) is the annexation of a certified copy mandatory for an appeal to the NCLAT against an order passed under the IBC must be based on a harmonious interpretation of the applicable legal regime, given that the IBC is a Code in itself and has overriding effect. Sections 61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the order is made available to the aggrieved party , in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of the IBC, the aggrieved party is expected to exercise due diligence and apply for a certified copy upon pronouncement of the order it seeks to assail, in consonance with the requirements of Rule 22(2) of the NCLAT Rules. Section 12(2) of the Limitation Act allows for an exclusion of the time requisite for obtaining a copy of the decree or order appealed against. It is not open to a person aggrieved by an order under the IBC to await the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an (Supra) makes it clear that the I B Code, 2016, has an over riding effect and section 61(1) and 61(2) of the I B Code, 2016, explicitly, conspicuously silent on the requirement of limitation, being computed from the date when the order , is made available to the Aggrieved Parties in contradiction to Section 423 of the Companies Act, 2013 . This Judgment, further makes it clear that the onus of making attempts, to obtain the certified copy squarely lies with the Applicant . This Appellate Tribunal is also conscious to the fact that the proceedings under I B Code, 2016 are intended to be as summary proceedings, in contrast to other Civil Courts proceedings, which are adversarial in nature . 16. This Tribunal , refers to the Judgment of this Appellate Tribunal in the matter of Exide Industries Ltd. Vs. Jitender Kumar Jain, Resolution Professional of Morakhia Copper Alloys Pvt. Ltd., (vide Company Appeal (AT) (Insolvency) No. 1169 of 2022), wherein this Appellate Tribunal had also quoted para- 21 of the judgment pronounced by the Hon ble Supreme Court of India in V. Nagarajan vs. SKS Ispat and Power Limited and Ors. (2022) 2 SCC (Supra) and in para-6 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er , by the Adjudicating Authority , they have chosen not to be pro-active in obtaining the required documents including, Certified Copy of the Order , to file the Appeal , before this Appellate Tribunal . 20. This Appellate Tribunal , therefore, comes to an irrefutable and purposive conclusion that the Appellants , fail to meet the requirements of limitations, as stipulated in I B Code, 2016. Hence, these Appeals , are dismissed on the point of Limitation . No costs. The connected pending Interlocutory Applications , if any, are Closed. TA (AT) No. 50 of 2021 Company Appeal (AT) (Ins.) No. 215 of 2020 21. The Petitioner /Appellant / Association in IA 576 of 2020 (TA No. 50 of 2021 in Comp. App (AT) (Ins.) No. 215 of 2020), has prayed for condoning the delay of around 15 days, in preferring the Appeal . 22. According to the Petitioner / Appellant / Association , the Certified copy of the impugned order dated 13.12.2019 in MA / 554 / 2019 in CP/193/IB/2018, was communicated to the Appellant on the same day and that the Limitation Period of 30 days for preferring the instant Appeal , expired on 12.01.2020 and hence the instant Appeal , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and spirit of Section 61 (2) of the I B Code, 2016, an Appeal , by an Aggrieved Person , should have been filed within 30 days from the date of Order of the Adjudicating Authority ( Tribunal ), and further 15 days time, is bestowed to the Appellate Tribunal , to condone the delay in question, provided that a Sufficient Cause , was shown by a Party in not preferring the Appeal in time (within 30 days period). 28. Be that as it may, in the instant case, the Comp. App (AT) (INS) No. 215 of 2020 (TA (AT) No. 50 of 2021), came to be filed admittedly on 27.01.2020 (vide Diary No. 18236), before the Principal Bench, New Delhi of the National Company Law Appellate Tribunal . Since, there is a delay of One day, in preferring the instant Appeal (which is beyond the outer limit of 30 + 15 days), further delay has occasioned in preferring the Appeal and this Tribunal has no power to Condone the delay in preferring the Appeal beyond 30 + 15 = 45 days. At this stage, this Tribunal , aptly points out Section 238 of the I B Code, 2016, which enjoins that the provisions of the Code will have an over riding effect, in respect of other Laws . Looking at from that a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
