2017 (11) TMI 2033 - AT - Insolvency and Bankruptcy

Transfer Petition Not Considered Application under Insolvency Code Due to Pending Arbitration Case. Appeal Dismissed as Time-Barred.

M/s. Custodial Services (India) Private Limited Versus M/s. Metafilms (India) Ltd.

The National Company Law Appellate Tribunal upheld the decision that a transferred petition under Section 433 was not considered an application under ... Condonation of delay in filing appeal - Transfer petition - to be treated as an application under Section 9 of the IBC in view of pendency of case under Section 11 of the Arbitration and Conciliation Act, 1996 - HELD THAT:- It is found that there being defect the appeal was taken back and after removal of defects if was filed on 7th September, 2017. If thirty days' period is calculated, it comes to 12th August, 2017 and fifteen days thereafter that if allowed, the appeal should have been filed by 27th August, 2017. However, 27th August, 2017 being holiday at best the appeal could have been entertained if it would have been filed by 28th August - after removal of the defects the appeal was filed on 7th September, 2017. As the appeal has been filed beyond the period of forty-five days i.e. thirty days of filing and further fifteen days' period, this Appellate Tribunal could have allowed, thus, this Appellate Tribunal has no jurisdiction to condone the delay. The petition for condonation of delay is accordingly rejected - the appeal is dismissed being barred by limitation. Issues: Appeal against order treating transferred petition under Section 433 (e) (f) as not under Section 9 of Insolvency and Bankruptcy Code due to pending case under Arbitration Act. Condonation of delay in filing appeal under Section 61 of I&B Code.Issue 1: Treatment of transferred petition under Section 433 as not under Section 9 of I&B Code due to pending case under Arbitration Act.The appeal was filed against an order by the Adjudicating Authority, where the transferred petition under Section 433 (e) (f) was not considered as an application under Section 9 of the Insolvency and Bankruptcy Code, 2016 due to a pending case under Section 11 of the Arbitration and Conciliation Act, 1996. The Appellate Tribunal adjourned the case sine die based on these grounds.Issue 2: Condonation of delay in filing appeal under Section 61 of I&B Code.The appeal was filed under Section 61 of the I&B Code with a petition for condonation of delay. The Appellate Tribunal has the power to condone a delay not exceeding fifteen days if satisfied with the grounds mentioned in the petition. The appellant acknowledged that the impugned order was passed on a specific date, and the appeal should have been filed within thirty days from that date. However, due to intervening weekends and holidays, the appeal was filed beyond the permissible period. The Appellate Tribunal found that the appeal was filed beyond the period of forty-five days, which included the initial thirty days for filing and a further fifteen days that could have been allowed. Consequently, the Appellate Tribunal held that it had no jurisdiction to condone the delay and rejected the petition for condonation of delay, resulting in the dismissal of the appeal as being barred by limitation.In conclusion, the judgment by the National Company Law Appellate Tribunal in this case addressed two main issues: the treatment of a transferred petition under Section 433 and the condonation of delay in filing the appeal under Section 61 of the Insolvency and Bankruptcy Code. The Tribunal upheld the decision that the transferred petition was not considered an application under the relevant section due to a pending case under the Arbitration Act. Additionally, the Tribunal rejected the petition for condonation of delay as the appeal was filed beyond the permissible period, resulting in the dismissal of the appeal.