2023 (7) TMI 1364 - AT - Insolvency and Bankruptcy

Appeal dismissed for 12-day delay beyond Section 61(2) deadline despite insufficient cause shown

Principal Commissioner of Customs Versus Rajendra Prasad Tak

The NCLAT dismissed an application for condonation of 12 days delay in filing an appeal. Under Section 61(2) of the Insolvency and Bankruptcy Code, ... Seeking condonation of delay of 12 days in filing of this Appeal - sufficient reasons for delay or not - Applicant/Appellant has submitted that the Appellant was not a party to the Interlocutory Application and was not having any knowledge about the Order - HELD THAT:- Section 61(1) provides that any person who is aggrieved against the Order of the Adjudicating Authority can prefer an Appeal before the Appellate Authority - Section 61(2) lays down the period within which the Appeal under Section 61(1) is to be filed. The said period has been fixed as 30 days. However, Section 61(2) proviso further provides for extension of time beyond the period of 30 days upto 15 days but not beyond that. In case the Applicant, filing the Appeal, alongwith Application of Condonation of Delay, is able to satisfy the Appellate Authority that there exists a sufficient cause for not filing the Appeal within the prescribed time then it can be entertained. It is pertinent to mention that the Hon'ble Supreme Court in the case of National Spot Exchange Limited Vs. Mr. Anil Kohli, Resolution Professional for Dunar Foods Limited [2021 (9) TMI 1156 - SUPREME COURT], dealing with this aspect of the matter that as to whether the Appellate Authority has the jurisdiction to condone the delay beyond the period of 15 days provided in the proviso to Section 61(2) of the Code held that there was a delay of 44 days in preferring the appeal which was beyond the period of 15 days which maximum could have been condoned and in view of specific statutory provision contained in Section 61(2) of the IB Code, it cannot be said that the NCLAT has committed any error in dismissing the appeal on the ground of limitation by observing that it has no jurisdiction and/or power to condone the delay exceeding 15 days. No explanation has been given anywhere in the Application for not filing the Appeal within the time prescribed under the Statute. It is rather the case of the Appellant that the Appeal has been filed only 3 days before the expiry of the extended period of 15 days without giving any further explanation about the laxity on the part of the Appellant in not filing the Appeal - It is pertinent to mention that the Legislator has consciously provided a period of 30 days for the purpose of filing an Appeal and has provided only 15 days window to the Appellate Authority to entertain an Appeal by condoning the delay beyond the period of 30 days if it is satisfied about the existence of a sufficient cause assigned by the Appellant for not approaching the Appellate Authority within the time prescribed. In the case of National Spot Exchange Limited, the Hon'ble Supreme Court has categorically held that the Appellate Authority does not have the jurisdiction to extend even a day beyond the extended period of 15 days. In such circumstances, the Appellant should have been vigilant enough to have filed its Appeal firstly within a period of 30 days which has been given to it by the Statute and if it could not have filed the Appeal within that period, then there should have been some justifiable reason much less sufficient cause for the purposes of satisfying the Appellate Authority for not filing the Appeal in time. The sufficient cause is just conspicuous by its absence in the Application in question and also during the course of hearing in the arguments of the Counsel for the Appellant. The Appellant has been pursuing this Litigation very casually and has failed to make out a case for the purpose of condonation of delay - the Application is thus found to be devoid of any merits and the same is hereby dismissed. Issues Involved:The issues involved in the judgment are the condonation of delay in filing an appeal before the National Company Law Appellate Tribunal and the application for confirmation of the sale of a corporate debtor as a going concern without resolution.Condonation of Delay:The appeal was filed by the Principal Commissioner of Customs seeking condonation of delay of 12 days in filing the appeal against the Order of the National Company Law Tribunal. The Appellant argued that they were not aware of the Order until a later date, hence the limitation to file the appeal should start from the date of knowledge. However, the Appellant failed to provide a justifiable reason for not filing the appeal within the prescribed time. The Appellate Authority dismissed the application for condonation of delay as the Appellant did not present sufficient cause for the delay.Statutory Provisions:Section 61 of the Code deals with appeals to be filed before the Appellate Authority. It specifies the time limit of 30 days for filing an appeal, with a provision for an extension of up to 15 days if sufficient cause is shown. The Appellate Authority does not have the jurisdiction to extend the time beyond the maximum allowable period of 15 days. The Appellant in this case failed to file the appeal within the statutory time frame and did not provide a valid reason for the delay.Conclusion:The Appellant's lack of diligence in filing the appeal within the prescribed time and the absence of a sufficient cause for the delay led to the dismissal of the application for condonation of delay. The Appellate Tribunal emphasized the importance of adhering to statutory timelines and dismissed both the application for condonation of delay and the appeal itself. The judgment underscores the significance of timely compliance with legal procedures in matters of appeals before the Appellate Tribunal.Separate Judgement:A separate judgment was delivered dismissing the application for condonation of delay and consequently dismissing the appeal as well, highlighting the importance of adhering to statutory timelines and the requirement of a valid reason for any delay in filing appeals before the National Company Law Appellate Tribunal.