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TMI Blog2023 (1) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... Online payment, in the account of Filing Fee, was received by the Office of the Registry, of this Tribunal - In the present case, this Tribunal, aptly points out that the Appellants, had filed the physical copy of the Appeal Paperbooks, before the Office of the Registry of this Tribunal, only on 31.10.2022. It cannot be gainsaid, that the Expiry of 30 days, after the Pronouncement of the impugned order, dated 26.08.2022, was on 24.09.2022. The 30 days period in preferring the Appeal, by any Person Aggrieved, in respect of an Order, passed by the Adjudicating Authority, is the deadline prescribed as per Section 61 (2) of the Insolvency and Bankruptcy Code, 2016. If an Appellate Tribunal (NCLAT), is satisfied on sufficient cause, being shown to its subjective satisfaction, in regard to the preferring of an Appeal (after the Expiry of 30 days period), then, such period, shall not exceed 15 days, as per Section 61 (2) of the Code. Admittedly, the completion of 45 days (30 + 15 days), was on 09.10.2022. In effect, the maximum 45 days being the outer limit (30 + 15 = 45 days), beyond which, the Appellate Tribunal (NCLAT), is bereft of any power, to condone the delay, in the teeth of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. K. Gaurav Kumar, Practising Company Secretary ORDER (Virtual Mode) Justice M. Venugopal, Member (Judicial): Introduction: IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022: According to the Learned Counsel for the Petitioners / Appellants , the instant Company Appeal (AT) (CH) (INS.) No. 418 of 2022, was filed on the 35th day , in terms of the Computation of the Limitation Period , and not the 46th day , as averred by the Respondent / Respondent . 2. It is represented on behalf of the Petitioners / Appellants , the impugned order dated 26.08.2022, was passed by the Adjudicating Authority , ( National Company Law Tribunal , Special Bench I, Chennai) in CP/IB/113/CHE/2021. Appellants Pleas: 3. The version of the Petitioners / Appellants is that, the Certified Copy of the impugned order dated 26.08.2022, refer to supra, was provided to the Petitioners / Appellants , on 15.09.2022 and it was uploaded on the Website of the Adjudicating Authority , on the same date, meaning thereby, that the grounds on which the Application came to be dismissed , was known to the Petitioners / Appellants , only on 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the day on which the judgment was pronounced and the time requisite for obtaining a copy of the order appealed from shall be excluded. 15.09.2022 From 15.09.2022 to 10.10.2022 = 25 Days Date on which impugned order was uploaded and on the same date, certified copy was provided to the Applicant 10.10.2022 Total Period of Limitation = 10 Days + 25 Days = 35 Days Date of filing the company appeal 7. The submission of the Petitioners / Appellants is that, the period beginning from 05.09.2022, Viz. the date of Application for Certified Copy of the Order to 15.09.2022, Viz. the date on which, the Certified Copy of the Order was provided to the Petitioners / Appellants , is to be excluded, from the Period of Limitation , in view of Section 12 (2) of the Limitation Act, 1963, and as per decision of the Hon ble Supreme Court of India in the matter of V. Nagarajan v. SKS Ispat and Power Limited and Ors., (vide Civil Appeal No.3327 of 2020 dated 22.10.2021). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est Bengal v. Administrator, Howrah Municipality and Others [AIR 1972 at Page 749]. 61. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute sufficient cause or not would dependent upon facts of each case. There cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the applicant/appellant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bona fides can be imputed to the defaulting party. [emphasis supplied] Respondent s Contentions: 12. The Learned Practising Company Secretary for the Respondent, submits that the instant Comp. App (AT) (CH) (INS.) No. 418 of 2022, was filed by the Appellants on the 46th day, from the date of passing of the impugned order dated 26.08.2022, passed by the Adjudicating Authority ( National Company Law Tribunal , Special Bench I, Chennai) in CP/IB/113/CHE/2021, which exceeds the 30 days permissible period , under the I B Code, 2016, and fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 61(1) and 61(2), it is evident that limitation commenced once the order was pronounced and the time taken by the Court to provide the appellant with a certified copy would have been excluded, as clarified in Section 12(2) of the Limitation Act, if the appellant had applied for a certified copy within the prescribed period of limitation under Section 61(2) of the IBC. The construction of the law does not import the absurdity the appellant alleges of an impossible act of filing an appeal against an order which was uploaded on 12 March 2020. However, the mandate of the law is to impose an obligation on the appellant to apply for a certified copy once the order was pronounced by the NCLT on 31 December 2019, by virtue of Section 61(2) of the IBC read with Rule 22(2) of the NCLAT Rules. In the event the appellant was correct in his assertion that a correct copy of the order was not available until 20 March 2020, the appellant would not have received a certified copy in spite of the application till such date and accordingly received the benefit of the suo motu order of this Court which came into effect on 15 March 2020. However, in the absence of an application for a certified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, as per Section 61(2) of the I B Code, the appeal was required to be filed on or prior to 28.12.2019. The appeal could have been filed within a further period of fifteen days, if NCLAT was satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days. As such, the said period would come to an end on 12.1.2020. The certified copy of the impugned judgment of NCLT was made available on 18.12.2019. If the allowance for the said period is granted, the appeal should have been preferred on or prior to 2.2.2020. However, in the present case, the appeal is filed on 18.2.2020. It is also not in dispute, that immediately after the order was passed on 28.11.2019 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 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. 19. The Learned PCS for the Respondent, cites the Order dated 29.04.2022 of the Hon ble Supreme Court of India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. Support was sought from a judgment of this Court in Raja Harish Chandra Raj Singh vs. Dy. Land Acquisition Officer [1962 (1) SCR 676] for submitting that provisions relating to limitation have to be given a liberal construction. The judgment that is relied upon by the Respondent No. 1 relates to Section 18 of the Land Acquisition Act. However, we are concerned with the limitation prescribed by Section 61 of the IBC which fell for consideration of this Court in Kalpraj Dharamshi (supra). In the said judgment, it was categorically held by this Court that an appeal against the order of NCLT shall be preferred within a period of 30 days from the date on which the order was passed by the NCLT. The Appellate Tribunal has the power to extend the period of limitation by another 15 days. In view of the aforesaid judgment, we are of the considered view that the Appellate Tribunal committed an error in issuing notice in an appeal that was filed by Respondent No.1 with delay of 388 days. The appeal is, accordingly, allowed. Pending application(s), if any, shall stand disposed of. 20. The Learned PCS for the Respondent, relies on the Order of the Hon ble High Court of D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ects. Some of them are of primary nature like not mentioning the provisions of law on the interim application, asking for fair typing of dim documents, not mentioning of age of the person in the affidavit who had filed the affidavit, not inserting the paragraphs of pecuniary and territorial jurisdiction in the petition, not mentioning the award amount in the plaint and non-payment of the court fee accordingly etc. 18. It is also not expected that the petitioner should take removal of such defects for so long that is from 17.08.2013 to 12.11.2013. Initially when petition was filed on 17.8.2013, the defects were removed within 30 days that is by 2.9.2013 and petition was re-filed on 3.9.2013. On that day registry raised 13 objections which the petitioner removed only by 8.11.2013 that is after more than 60 days. On these facts the registry has shown the filing date as 12.11.2013. The question is if the objections were not removed within the given time by registry, but is done beyond the period of 30 days of raising the objections in such situation should this refiling be considered as fresh institution? The answer lies in Part G of Delhi High Court Rules which relates to the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrar, Incharge of Filing Counter under Sub-Rule 1, it shall be considered as a fresh institution. .... ..... 21. In view of the above, it is apparent that the court cannot take leniency in condoning the delay in refiling the petition after removing the objections when objections were removed after 30 days of the filing. The aforesaid rule clearly stipulates that it shall be considered as fresh filing. Even otherwise, the petitioner has miserably failed to explain the delay in refiling. No explanation has come forward except that there were vacations of Dussehra and the counsel had gone to his native village which certainly is not the sufficient ground for condonation of delay under Section 34 of the Act wherein as observed by the Supreme Court of India in Popular Construction' case (supra), the endeavour of the court should not be to make the statutory provisions redundant or otiose . 21. The Learned PCS for the Respondent, adverts to the Order of the Hon ble High Court of Rajasthan dated 21.02.2019, in Jagmal Singh v. State of Rajasthan, wherein, it is observed as under: The appeal is reported to be barred by limitation for 11 days. The only reason assigned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the concerned Applicant for condoning the delay in preferring such Application. Suffice it for this Tribunal to make a mention that the Provisions of the Insolvency Bankruptcy Code, 2016 and the Regulations made thereunder, are required to be adhered to by a Stakeholder / Litigant / Applicant in a scrupulous manner and that too in true Letter and Spirit . Admittedly, in the instant case, the present Comp App (AT)(CH)(Ins) No.209/2022 is preferred beyond 45 days (30 + 15) period, prescribed under the Insolvency Bankruptcy Code, 2016. In reality, there has occasioned a delay of 1027 days in preferring the instant Comp App (AT)(CH)(Ins) No.209/2022 , which in the considered opinion of this Tribunal is not to be condoned, as there is no power enjoined upon the Appellate Authority (National Company Law Appellate Tribunal) to condone the delay beyond the prescribed period , enunciated under the Insolvency Bankruptcy Code, 2016. Looking at from any angle, and also keeping in mind the decision of the Hon ble Supreme Court in V. Nagarajan V SKS Ispat and Power Ltd. Ors., reported in (2022) 2 SCC at Page 244 Spl. Pages 257 and 265, this Tribunal holds tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r: 23. Learned Counsel for the Appellant has placed reliance on the judgment of the Hon ble Supreme Court in Sesh Nath Singh and Ors. vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. Ors.- Civil Appeal No. 9198 of 2019 (decided on 22.03.2021) . In the above case, an Application was filed under Section 7 of the I B Code which was admitted by the Adjudicating Authority. In the above case, it was found that right to sue accrued on 31.03.2013 when the account of the Corporate Debtor was declared NPA. The Financial Creditor has initiated proceeding under Section 13(2) of the SARFAESI Act, 2002 by issuing a notice on 18.01.2014. The proceedings under Section 13(2) were stayed by the High Court by its order dated 24.07.2017 when it passed interim order. High Court was prima facie of the view that Financial Creditor being a Co-operative Bank, it could not invoke the provisions of the SARFAESI Act, 2002. In the above context, Section 14 of the Limitation Act, 1963 came for consideration before the Hon ble Supreme Court. The Hon ble Supreme Court held that benefit of proceedings under the SARFAESI Act, 2002 is to be given to the Financial Creditor under Section 14 since prima faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were stayed by the High Court by its order dated 24th July 2017. The proceedings under Section 7 of the IBC were initiated on 10th July 2018. 87. In our view, since the proceedings in the High Court were still pending on the date of filing of the application under Section 7 of the IBC in the NCLT, the entire period after the initiation of proceedings under the SARFAESI Act could be excluded. If the period from the date of institution of the proceedings under the SARFAESI Act till the date of filing of the application under Section 7 of the IBC in the NCLT is excluded, the application in the NCLT is well within the limitation of three years. Even if the period between the date of the notice under Section 13(2) and date of the interim order of the High Court staying the proceedings under the SARFAESI Act, on the prima facie ground of want of jurisdiction is excluded, the proceedings under Section 7 of IBC are still within limitation of three years. 24. The above judgment does not come to any aid of the Appellant since the benefit under Section 14(2) of the Limitation Act was given in the above case on the prima facie ground that SARFAESI proceedings is without jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 27. On behalf of the Respondent, a reference is made to the Order dated 19.10.2022 of this Tribunal , in Comp App AT CH INS.370 of 2022, between Johnson Lifts Pvt. Ltd. v. Tracks and Towers Infratech Pvt. Ltd., wherein, at Paragraphs 7 and 8, it is observed as under: 7. Rule 150 of NCLT Rules, 2016 enjoins the Pronouncement of Orders by the Tribunal . Rule 150 (3) of the Rules, 2016 speaks of furnishing Certified Copy of every Order , passed by the Tribunal to be given to the Parties . 8. More importantly, Section 421 (3) of the Companies Act, 2013 provides that Every Appeal under Sub-Section (1) shall be filed within a period of forty-five days from the date on which a copy of the Order of the Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal . In the present case, this Tribunal , aptly points out that the Appellants , had filed the physical copy of the Appeal Paperbooks , before the Office of the Registry of this Tribunal , only on 31.10.2022. 31. It cannot be gainsaid, that the Expiry of 30 days , after the Pronouncement of the impugned order , dated 26.08.2022, was on 24.09.2022. The 30 days period in preferring the Appeal , by any Person Aggrieved , in respect of an Order , passed by the Adjudicating Authority , is the deadline prescribed as per Section 61 (2) of the Insolvency and Bankruptcy Code, 2016. If an Appellate Tribunal ( NCLAT ), is satisfied on sufficient cause , being shown to its subjective satisfaction , in regard to the preferring of an Appeal (after the Expiry of 30 days period ), then, such period, shall not exceed 15 days , as per Section 61 (2) of the Code. Admittedly, the completion of 45 days (30 + 15 days), was on 09.10.2022. In effect, the maximum 45 days being the outer limit (30 + 15 = 45 days), beyond which, the Appellate Tribunal ( NCLAT), is bereft of any power, to condone the delay , in the teeth of the mandate, prescribed under the I B Code, 2016, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants version, as projected by them, the last date for preferring the instant Appeal , was on 04.10.2022, and this could be seen as under: Appellants Version: Period Days 26.08.2022 to 04.09.2022 (Period before applying the Certified Copy) 10 days 15.09.2022 04.10.2022 20 days Total 30 days (30th day being 04.10.2022) 39. Be that as it may, in the light of detailed upshot, keeping in mind, the provisions of the I B Code, 2016, having an overriding effect , in respect of other Laws , as per Section 238 of the Code, this Tribunal , taking into consideration of yet another fact that the I B Code, 2016, is an inbuilt and a self-contained one , yet the Limitation Act, 1963, cannot supersede / march over , the I B Code, 2016, cemented on the accepted maxim genralia specialbus non derogant , on a consideration of attendant facts and circumstances of the present case, which float on the service, in a cumulative manner, comes to a resultant cocksure conclusion, that the instant Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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