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TMI Blog2024 (3) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Order. The mere fact that Appellants claim that they were not aware of the process of CIRP nor they could file any claim in the CIRP cannot be a ground to permit the condonation of delay which is beyond condonable period. Ignorance of entire CIRP Process cannot be a ground to condone the delay which is beyond condonable period. From the facts brought on record by the parties, it is clear that several Appellants who had filed the Appeals against the Order dated 24th April, 2023 along with delay condonation applications which applications were rejected on the ground that delay was beyond 15 days. The order passed by this Tribunal rejecting similar applications filed by the other Appellants/Applicants cannot be ignored. There are no grounds made in these applications to condone the inordinate delay of 223/230 days in filing these Appeals - the delay condonation applications are dismissed. - [ Justice Ashok Bhushan ] Chairperson , [ Barun Mitra ] Member ( Technical ) And [ Arun Baroka ] Member ( Technical ) For the Appellant : Ms. Priya Kumar , Mr. Tejas Chhabra , Mr. Kabir Harpalani , Ms. Priya Chauhan , Advocates For the Respondents : Mr. Ajay Bhargava , Ms. Wamika Trehan , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 702 of 2022 which came to be approved by the Adjudicating Authority vide Order dated 24th April, 2023. The Appellant/Applicant filed this Appeal on 25th January, 2024. The ground in the Application is that Appellant were not aware of the CIRP of the Corporate Debtor and they came to know about the Order dated 24th April, 2023 only on 23rd November, 2023. The Appellant was added in WhatsApp group namely Sare Shop Buyers Group on 09.10.2023 and thereafter Appellant wrote an email on 18.10.2023 to the RP which was bounced back. After making further enquiries, RP vide email dated 23rd November, 2023 informed the Appellant about CIRP and about the Impugned Order hence this Appeal has been filed. The case of the Appellant further is that coming to know about the Order on 23rd November, 2023, Appeal was e-filed on 30th December, 2023 and hard-copy could be presented on 02.01.2024. It is submitted that Appellants are NRI who are residing outside the country. 8. I.A. No. 808 of 2024: This application prays for condonation of 230 days delay in filing the Appeal. C.A.(AT) Ins. No. 367 of 2024 has been filed on 09.01.2024. The Appellant s case in the Application is that in November, 2023 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Order. In the present case, Impugned Order was pronounced on 24th April, 2023, period of limitation has to be calculated from the date of order. Interpretation sought to be given by the Appellant defeats the underlying objective of the IBC. Erstwhile Resolution Professional has taken all steps by issuance of public notice making publication as per rules, Appellant having never filed any claim, they cannot be allowed to challenge the order after inordinate delay. 11. Learned Counsel for the Appellant in support of her submission submits that Appellant is entitled to file an Appeal within 30 days. Limitation under Section 61(2) is to be considered from the date of knowledge and when law provides remedy to person, provision has to be construed in a manner to make the rules practicable and meaningful. Section 61(2) of the Code provides as follows: (2) Every appeal under sub-section (1) shall be filed within thirty days1 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised in favour of allowing a downloaded copy in lieu of a certified copy. While it may well be true that waivers on filing an appeal with a certified copy are often granted for the purposes of judicial determination, they do not confer an automatic right on an applicant to dispense with compliance and render Rule 22(2) of the Nclat Rules nugatory. The act of filing an application for a certified copy is not just a technical requirement for computation of limitation but also an indication of the diligence of the aggrieved party in pursuing the litigation in a timely fashion. In a similar factual scenario, Nclat had dismissed an appeal [Prowess International (P) Ltd. v. Action Ispat Power (P) Ltd., 2018 SCC OnLine NCLAT 644] as time-barred under Section 61(2) IBC since the appellant therein was present in court, and yet chose to file for a certified copy after five months of the pronouncement of the order. 32. The appellant had argued that the order of Nclat notes that NCLT Registry had objected to the appeal in regard to limitation, to which the appellant had filed a reply stating that the limitation period would begin from the date of the uploading of the order, which was 12-3-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01) 8 SCC 470; Singh Enterprises v. CCE, (2008) 3 SCC 70; Chhattisgarh SEB v. CERC, (2010) 5 SCC 23; Bengal Chemists Druggists Assn. v. Kalyan Chowdhury, (2018) 3 SCC 41 : (2018) 2 SCC (Civ) 30] . 33. The answer to the two issues set out in Section C of the judgment (i) when will the clock for calculating the limitation period run for proceedings under IBC; and (ii) is the annexation of a certified copy mandatory for an appeal to Nclat against an order passed under IBC must be based on a harmonious interpretation of the applicable legal regime, given that IBC is a Code in itself and has overriding effect. Sections 61(1) and (2) 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. Learned Counsel for the Respondent has also referred to Judgment of Hon ble Supreme Court in National Sport Exchange Limited Vs. Anil Kohli, RP of Dunar Foods, 2022 11 SCC 761 where Hon ble Supreme Court held that this Tribunal has also no jurisdiction to condone delay exceeding 15 days. In para 16 to 17 and 20 to 21, following was laid down: 16. It is also required to be noted that even Shri Maninder Singh, learned Senior Counsel appearing on behalf of the appellant has, as such, fairly conceded that considering Section 61(2) of the IB Code, the Appellate Tribunal has jurisdiction or power to condone the delay not exceeding 15 days from the completion of 30 days, the statutory period of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Advocates Act, 1961. Learned Counsel for the Appellant has relied on para 8, 9, 12 and 14 which are as follows: 8. We have heard the learned counsel for the appellant writ petitioner and the respondent Bar Council of India and Smt D. Anuradha, the complainant. At the hearing of the appeals it was urged that there was a doubt whether the Bar Council of India has committed an arithmetical error in calculating the period of limitation and therefore whether the review petition could at all be held barred by time. So, the learned counsel for the Bar Council of India sought to support the order dismissing the review petition on the alternative ground that on the language of Section 48-AA, the Bar Council of India becomes functus officio on the lapse of 60 days from the date of the order and its jurisdiction to exercise power of review comes to an end, and therefore also the impugned order dated 26-8-2001 has to be sustained. However, the learned counsel for the parties agreed that the two questions relating to interpretation of Section 48- AA are of frequent occurrence and the Bar Council of India is also feeling difficulty in several cases, and therefore desires both the quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied on which was noted and considered by this Tribunal in the said Judgment. In para 29, 30 and 31, laid down following: 29. Learned Counsel for the Appellant has also relied on the judgment of the Hon ble Supreme Court in D. Saibaba vs. Bar Council of India and Anr.- (2003) 6 SCC 186 . In the above case, Review Petition was filed by the Appellant was rejected as barred by time and the Hon ble Supreme Court has occasion to examine Section 48-AA of the Advocates Act, 1961. Contention was raised in the Appeal that right to review can be exercised only when order is known or communicated to the aggrieved person. The Hon ble Supreme Court has held that the expression the date of that order as occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order. The Hon ble Supreme Court also in the said case has referred to judgment of Raja Harish Chandra Raj Singh (supra). In paragraphs 9 and 10, following was held:- 9. So far as the commencement of the period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression the date of that order as occurring in Section 48-AA has to be construed as mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the expression the date of that order , therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed. In paragraph 14 of the judgment, following was held:- 14. How can a person concerned or a person aggrieved be expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words the date of that order , therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed. 31. In the present case, orders passed by the Adjudicating Authority were pronounced in the open Court in the presence of the Counsel for the Appellant. In any view of the matter, they cannot contend that they do not have even constructive knowledge of the order on the said date. Knowledge of the order has to be actual or constructive knowledge and when the orders are pronounced, it can very well be said that the constructive knowledge has to be imputed to the contents of the order to an aggrieved party. In event the submission of the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case where Hon ble Supreme Court was considering the question of limitation for filing a revision under Income Tax Act. 20. Learned Counsel for the Respondent has relied on order of this Tribunal passed in Appeals filed by several other Appellants challenging the Order dated 24th April, 2023 which is challenge in the present Appeals. There was several other Applicants filed the Appeals against the Order dated 24th April, 2023. The Appeals being barred by time, the said Delay Condonation Applications were considered and this Tribunal has passed an order rejecting the similar applications praying for condonation of delay where delay was more than 15 days. We may refer to order on I.A. No. 3008 of 2023 in C.A.(AT) Ins. No. 889 of 2023 which application were rejected by Order dated 06.10.2023. 21. Learned Counsel for the Appellant submits that against the Order passed by this Tribunal, Civil Appeals have been filed in the Hon ble Supreme Court where Hon ble Supreme Court has issued notice and also passed an interim order. Reference has been made to Civil Appeal Diary No. 47268 of 2023 which appeal was filed against the order dated 06.10.2023 passed in I.A. No. 3008 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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