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TMI Blog2025 (4) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... re the NCLAT against two separate orders passed on 20.07.2023 by the National Company Law Tribunal (hereinafter referred to as "NCLT") where an application filed by the appellant herein who is the shareholder and suspended Managing Director of Dharti Dredging and Infrastructure Limited (Corporate Debtor) under Section 60(5) read with Section 35(1)(N) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "IBC") seeking a direction to the respondent(s) to place the Resolution Plans submitted by him before the Committee of Creditors (CoC) for consideration along with the other Resolution Plan and for staying the voting results on the Resolution Plan which was dismissed and another application preferred by Respondent No. 1, Resolution Professional of the Corporate Debtor (hereinafter referred to as "RP") under Section 30(6) and 31(1) of the IBC read with regulation 39(4) of the Insolvency and Bankruptcy Board of India (IBBI) (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 in short regulations for approval of the Resolution Plan dated 10.01.2023 of consortium Respondent No. 5 herein had been allowed. 3. It needs to be noted here at this stage t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, although on facts, could not dispute the findings as returned by the NCLAT but had however sought to assert that, the appeals as have been filed being within the permissible period where the delay could be condoned by the NCLAT as provided for under Section 12(3) of the Limitation Act. The Appellate Tribunal could not dismiss the application or the appeal. Reliance has also been placed on Section 61 of the IBC especially proviso to sub-section (2) thereto. The said proviso allows an additional period of 15 days to file an appeal beyond the initial period of 30 days. It is on this basis asserted that since 45 days had not passed on the date of filing the appeal from the date of pronouncement of the Order i.e. 20th of July, 2023 by the NCLAT, the delay in filing the appeal should have been condoned. 7. It is submitted that the appellant instructed his Counsel to obtain a certified copy of the order on the date the order was pronounced by the NCLT. The free certified copy thereof was made ready and given to the appellant on 01.08.2023. The limitation, if taken from the date of pronouncement of the Order would end on 19th August 2023 whereas the appeal has been filed on 28th Augus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied for by the appellant. The appeal was filed on 28.08.2023 whereas the impugned Order was pronounced by NCLT on 20th July 2023. The period expired on 19.08.2023 i.e. 30 days as provided under Section 61(2) of IBC that the counsel has stressed upon the fact that the appellant had not come to the Court with clean hands and is guilty of supressing facts. Reference has been made to para 6 and 17 of the grounds of appeal wherein para 6 it was declared that the appeal had been filed within the period of limitation while in para 17, assertion has been made that the appellant had applied for the certified copy of the Order on 01.08.2023 and received the same on 10.08.2023 seeking exclusion of this period of ten days under Section 12(3) of the Limitation Act, 1963. Non-filing of the application for condonation of delay along with the appeal has also been asserted to be unacceptable when under the proviso it is so permissible. However, he asserts that the said application was filed on 06.12.2023 which is much beyond the permissible period. Further, a new stand has been taken in the application for condonation of delay contrary to the appeal. Whereas, as a matter of fact, it is admitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in exercise of the powers by the resolution professional during the corporate insolvency resolution period; (iii) the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board; (iv) the 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, or sub-section (4) of Section 54L, or sub-section (4) of Section 54N, may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order. (5) An appeal against an order for initiation of corporate insolvency resolution process passed under sub-section (2) of Section 54-O, may be filed on grounds of material irregularity or fraud committed in relation to such an order. 13. A perusal of the above Section would show that any party which is aggrieved by decision of the NCLT can file an appeal before the NCLAT. A feature which needs to be highlighted here is that this provision begins with a non obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-availability from the period of limitation for filing appeal under Section 61(2) of the IBC, 2016. This Court while dealing with Section 421(3) of the Companies Act, 2013 and Section 61(2) of IBC adopted a purposive interpretation and observed that the use of phrase "from the date on which a copy of the Order of the Tribunal is made available to the person aggrieved" in Section 421(3) of the Companies Act, 2013 is indicative of the overt intention of the legislature to commence the period of limitation only upon the receipt of certified copies of the order by the aggrieved party. However, the scheme of Section 61 of the IBC, 2016 does not contain the condition for commencement of period of limitation only after obtaining a certified copy of the Order. Thereby refuting the justification of non-availability of certified copy of the Order offered for delay in filing the appeal. While harmoniously approaching and reading the Code and the provisions of the Companies Act, 2013, primacy of Code was said to be established being the intent of the legislature. This Court did not allow the litigants to await the receipt of certified copies as it would upset the time bound framework of IBC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the part of the appellant within the statutory period of limitation to obtain the certified copy of the impugned Order therein. 22. In National Spot Exchange Limited vs. Anil Kohli, Resolution Professional for Dunar Foods Limited ( 2022 ) 11 SCC 761, this Court reaffirmed the position of law that an appeal must be filed within 30 days and in any case, delay beyond 15 days cannot be condoned in terms of Section 61(2) of the IBC. This Court further refused to exercise its extraordinary power under Article 142 of Constitution of India to condone the delay holding that such power could not be exercised against the express provisions of the statute upholding the Order of the NCLAT that the Appellate Tribunal had no jurisdiction at all to condone the delay exceeding 15 days beyond the period of 30 days as contemplated under Section 61(2) of the IBC. 23. In Sanjay Pandurang Kalate Vs. Vistra ITCL India Pvt. Ltd. ( 2024 ) 3 SCC 27, this Court had an occasion to deal with the case where an application was heard by NCLT on 17.05.2023 but no order was pronounced. The Order came to be uploaded by the Registry on 30th April 2023 directly carrying the date of the Order as 17.05.2023. The appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and the time of ten days as sought to be exempted for the preparation and making available the certified copy cannot be credited to the benefit of the appellant as the period of limitation commences from the date of pronouncement of the order and the benefit of Section 12(2) of the Limitation Act is available only on an application for grant of certified copy of the Order having been filed till the date of preparation of the said certified copy. Since no such steps have been taken by the appellant for applying the certified copy, the appeal was beyond limitation. 28. The application of condonation of delay in the first appeal, disclosing no reasons whatsoever in filing the appeal, the Appellate Tribunal was justified in dismissing the application for condonation of delay. The satisfaction has to be of the Appellate Tribunal and that too on justifiable grounds, which, as is apparent, from the perusal of the application there is none pleaded which can be said to be projecting sufficient cause for not approaching the Appellate Tribunal within the time stipulated under Section 61(2) of the IBC. 29. The other reasons as has been assigned by the Appellate Tribunal for rejecting th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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