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TMI Blog2024 (11) TMI 1140X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.03.2024, hence from 30.03.2024, the Appeal filed on 22.04.2024 is within time. Limitation for filing an Appeal begins from the date when the Order is pronounced by the Adjudicating Authority. In the present case, Order was delivered on 26.02.2024. The Hon ble Supreme Court in the matter of V Nagarajan Vs. SKS Ispat Power Limited Ors., [ 2021 (10) TMI 941 - SUPREME COURT (LB) ], had laid down about commencement of limitation for filing the Appeal had noted the difference between the Statutory Scheme under Section 421 of the Companies Act, 2013, and Section 61 of the Insolvency and Bankruptcy Code, 2016. It was held by the Hon ble Supreme Court that omission of the words from the date on which a copy of the Order of the Tribunal is made available to the person aggrieved from Section 421(3) to Section 61(2) are not mere omission and power to condone the delay is slightly circumscribed and conditioned upon showing sufficient cause. In the case of AARYAN PROJECTS PRIVATE LIMITED VERSUS KLOWIN INFRASTRUCTURE PRIVATE LIMITED [ 2022 (8) TMI 1551 - CALCUTTA HIGH COURT] , even after substituted service, Plaintiff obtained fresh summons of service which was returned unserved and when the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Resolution Professional (RP). 6. Learned Counsel for the Appellant submits that the Appellant came to know about the Impugned Order only on 30.03.2024 when Appellant had approached the Punjab National Bank (PNB) for One Time settlement (OTS). Appellant thereafter has filed the Appeal within 30 days of the knowledge. It is submitted that Appeal having been filed within 30 days from date of knowledge is not barred by time. Learned Counsel for the Appellant submits that Appellant was never served any Notice in Section 95 Application which was filed by the SBI. It is submitted that the Notices which were issued in Section 95 Application where notice sent on address of the Appellant which is 1 42, Phase I, Ashok Vihar, New Delhi, which was address given in the Guarantee Deed executed in the Year 2011 12. Notice sent on the said address had received back unserved. Appellant has not resided on the said address, since the said Assets were sold in the Year 2012 itself, which has been noted by the Order dated 05.03.2019, passed by the Debt Recovery Tribunal (DRT) in the matter of `Bank of Baroda Vs. `M/s. Allied Perfumers Pvt. Ltd. reported in RC/327/2015 in OA/203/2013. It is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unar Foods Limited , reported in (2022) 11 SCC 761, has held that Appellate Tribunal has no jurisdiction at all to condone the delay exceeding 15 days. In Para 8 of the Judgment following has been laid down: 8. At the outset, it is required to be noted that the appellant herein has challenged the order passed by the adjudicating authority dated 6-3-2019 affirming the decision of the resolution professional of rejection of the claim of the appellant before Nclat. The appeal preferred before Nclat was under Section 61(2) of the IB Code. As per Section 61(2) of the IB Code, the appeal was required to be preferred within a period of thirty days. 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. 11. The submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enders and valuation of the corporate debtor. IBC, as a prescriptive mechanism, affecting rights of stakeholders who are not necessarily parties to the proceedings, mandates diligence on the part of applicants who are aggrieved by the outcome of their litigation. An appeal, if considered necessary and expedient by an aggrieved party, is expected to be filed forthwith without awaiting a free copy which may be received at an indefinite stage. Hence, the omission of the words from the date on which the order is made available for the purposes of computation of limitation in Section 61(2) IBC, is a consistent signal of the intention of the legislature to nudge the parties to be proactive and facilitate timely resolution. 12. The present is a case where Appellant s contention is that address on which Notices were sent to the Appellant was address of Ashok Vihar s Assets which was sold in 2012 and Appellant has not been residing on said address subsequent to that. It is submitted that even the RP has admitted before the Adjudicating Authority on 27.04.2019, that current address of the Appellant is not available. It is on the record that when the Notices sent to the Appellant at Ashok Vih ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on application for that purpose but the order of the trial court refusing to set aside the ex parte decree was clearly appealable under Order XLIII Rule 1(d) CPC which provides that an appeal shall lie from the orders listed in the said provision and in clause (d) is mentioned an order under Rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte. It cannot be disputed that a decree granting divorce under Section 13(1)(i-b) whether ex parte or bipartite is a decree which is appealable under Section 28 of the Hindu Marriage Act, 1955. Consequently, the order of the trial court refusing to set aside such an ex parte decree and rejecting the application under Order IX Rule 13 CPC could have been validly made the subject - matter of an appeal under Order XLIII Rule 1(d). Therefore, the revision application filed by the respondent before the High Court should be treated in substance as one by way of miscellaneous appeal. Once the High Court has appellate jurisdiction over the impugned order of the learned trial Judge, it is obvious that the High Court was fully competent to interfere with the order by reappreciating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judgment as extracted above, it is clear that Hon ble Supreme Court has also taken note of the fact that Respondent being illiterate lady could not have known about passing of the Ex-Parte decree earlier. It was held that High Court has rightly allowed the Application and the case does not call for any interference under Article 136 of the Constitution and substantial justice has been done to the Parties and the opportunity has been given to wife to contest the Divorce Petition. The above Judgment is on the facts of its own case and was case of setting aside the Ex-Parte Divorce decree by the High Court by allowing the Application under Order 9, Rule 13, where Hon ble Supreme Court refused to interfere. 16. Learned Counsel for the Appellant has also relied on the Judgment of Hon ble Calcutta High Court in the matter of `Aaryan Projects Private Limited. Vs. `Klowin Infrastructure Private Limited reported in G.A. No. 3/2021 In C.S. No. 205/2017 decided on 30.08.2022. An Application was filed for recalling the Ex-Parte decree dated 12.06.2019 passed by the High Court, in which case also substituted service was permitted which was also published in the Newspaper. Even after substitute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmons or further time allowed, or (c) where a defendant, who having obtained an order for transfer of a suit to this Court under section 39 of the Presidency Small Cause Court Act (XV of 1882), and having been directed under the provisions of section 40(2) of that Act to file a written statement, has failed to file the same within the time fixed, the suit shall, unless otherwise ordered by the Judge, Registrar or Master, upon requisition by the plaintiff in writing to the Registrar and production of a certificate showing such default, be transferred to the peremptory list of undefended suits. From the above Rule, it is patently clear that the instant suit could not have been transferred to the peremptory list of undefended suits by suppressing the material fact that the service of writ of summons and the plaint were pending and consequently incomplete. 17. The Hon ble Calcutta High Court in the above case took the view that the Plaintiff has not approached the Court with the clean hand, hence the Ex- Parte decree was set aside. In Paragraph 22, following was held by allowing the Application : 22. In view of the above discussions, I am satisfied that the original plaint, the amended ..... X X X X Extracts X X X X X X X X Extracts X X X X
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