2023 (1) TMI 350 - AT - Insolvency and Bankruptcy

Appeal dismissed for delay beyond 45 days under I & B Code, 2016. Time limits crucial.

The tribunal dismissed the application for condonation of delay as the appeal was filed beyond the prescribed 45-day period under the I & B Code, ... Condonation of delay in filing appeal - appeal filed on the 35th day, in terms of the Computation of the Limitation Period, and not the 46th day, as averred by the Respondent / Respondent - submission of the Petitioners / Appellants is that, the period beginning from 05.09.2022, Viz. the date of Application for Certified Copy of the Order to 15.09.2022, Viz. the date on which, the Certified Copy of the Order was provided to the Petitioners / Appellants, is to be excluded, from the Period of Limitation, in view of Section 12 (2) of the Limitation Act, 1963. HELD THAT:- In the instant case, the order impugned in CP/IB/113/CHE/2021 was passed by the Adjudicating Authority (National Company Law Tribunal, Special Bench – I, Chennai) on 26.08.2022. The Appellants, had preferred the instant Comp. App (AT) (CH) (INS.) No.418 of 2022 before this Tribunal, through E-Portal on 10.10.2022 (on the 46th day – vide Transaction Ref. No.: 1010220030268 dated 10.10.2022; 7.52 P.M.), whereby, a Sum of INR 6,000, through ‘Internet’ based Online payment, in the account of Filing Fee, was received by the Office of the Registry, of this Tribunal - In the present case, this Tribunal, aptly points out that the Appellants, had filed the physical copy of the Appeal Paperbooks, before the Office of the Registry of this Tribunal, only on 31.10.2022. It cannot be gainsaid, that the Expiry of 30 days, after the Pronouncement of the impugned order, dated 26.08.2022, was on 24.09.2022. The 30 days period in preferring the Appeal, by any Person Aggrieved, in respect of an Order, passed by the Adjudicating Authority, is the deadline prescribed as per Section 61 (2) of the Insolvency and Bankruptcy Code, 2016. If an Appellate Tribunal (NCLAT), is satisfied on sufficient cause, being shown to its subjective satisfaction, in regard to the preferring of an Appeal (after the Expiry of 30 days period), then, such period, shall not exceed 15 days, as per Section 61 (2) of the Code. Admittedly, the completion of 45 days (30 + 15 days), was on 09.10.2022. In effect, the maximum 45 days being the outer limit (30 + 15 = 45 days), beyond which, the Appellate Tribunal (NCLAT), is bereft of any power, to condone the delay, in the teeth of the mandate, prescribed under the I & B Code, 2016, as opined by this Tribunal. So far as the ingredients of Section 61 of the I & B Code, 2016, are concerned, the Time Limit, enjoined under Section 61 (1) & (2) [30 + 15 = 45 days], is the Legislative Mandate, and the same, cannot be tinkered and tampered with, in any manner, by any Person / Litigant / Stakeholder, as the case may be. Suffice it, for this Tribunal, to pertinently point out that the Parties, under I & B Code, 2016, are to be alert, diligent, not to be an indolent and further not to adopt a laissez-faire attitude and lackadaisical approach. Rules of Limitation - HELD THAT:- There is no second opinion of an established fact, that the Rules of Limitation, being Rules of Procedure, do not create any Rights, in favour of any Individual nor do they define or create causes of action - After all, they just specify that a remedy, can be exercised, only upto a particular / certain period, and not later on. In the instant case, this Tribunal, pertinently points out that even if one goes by the Appellants version, as projected by them, the last date for preferring the instant Appeal, was on 04.10.2022. Keeping in mind, the provisions of the I & B Code, 2016, having an overriding effect, in respect of other Laws, as per Section 238 of the Code, this Tribunal, taking into consideration of yet another fact that the I & B Code, 2016, is an inbuilt and a self-contained one, yet the Limitation Act, 1963, cannot supersede / march over, the I & B Code, 2016, cemented on the accepted maxim genralia specialbus non derogant, on a consideration of attendant facts and circumstances of the present case, which float on the service, in a cumulative manner, comes to a resultant cocksure conclusion, that the instant Comp. App (AT) (CH) (INS.) No. 418 of 2022, filed by the Appellants, through E-Portal on 10.10.2022 (the 46th day), is clearly out of time, and in reality, it exceeds the outer limit of 30 + 15 = 45 days, permissible under Section 61 of the Code. Appeal dismissed. Issues Involved:1. Computation of Limitation Period2. Application for Certified Copy of Order3. Condonation of Delay4. Applicability of Limitation Act, 1963 to I & B Code, 20165. Jurisdiction of NCLAT to Condone Delay Beyond Statutory PeriodDetailed Analysis:1. Computation of Limitation Period:The appellants argued that the appeal was filed on the 35th day, considering the computation of the limitation period, and not on the 46th day as claimed by the respondent. The impugned order dated 26.08.2022 was provided to the appellants on 15.09.2022, and they sought legal opinion and prepared the draft appeal thereafter. The appellants contended that the period from 05.09.2022 (date of application for certified copy) to 15.09.2022 (date on which the certified copy was provided) should be excluded from the limitation period as per Section 12(2) of the Limitation Act, 1963.2. Application for Certified Copy of Order:The appellants applied for the certified copy of the impugned order on 02.09.2022, which was received on 05.09.2022. They argued that the delay in filing the appeal was due to the non-availability of their advocate during the Dussehra holidays and the additional measures taken to draft the appeal from Delhi. The appeal was filed on 10.10.2022, along with an application seeking to condone the delay of five days.3. Condonation of Delay:The appellants cited various judgments to support their plea for condonation of delay, including V. Nagarajan v. SKS Ispat and Power Limited and Ors., and Sesh Nath Singh & Anr. v. Baidyabati Sheoraphuli Co-operative Bank Ltd. & Anr. They argued that the delay should be condoned as the period for obtaining the certified copy should be excluded from the limitation period.4. Applicability of Limitation Act, 1963 to I & B Code, 2016:The respondent argued that the I & B Code, 2016, being a special code, overrides the Limitation Act, 1963. They contended that the appeal was filed on the 46th day, exceeding the permissible period of 30 days plus an additional 15 days for sufficient cause under the I & B Code, 2016. The respondent cited several judgments to support their argument, including V. Nagarajan v. SKS Ispat and Power Limited and Ors., Kalpraj Dharamshi & Anr. v. Kotak Investment Advisors Limited & Anr., and others.5. Jurisdiction of NCLAT to Condone Delay Beyond Statutory Period:The tribunal emphasized that the time limit prescribed under Section 61(2) of the I & B Code, 2016, is a legislative mandate and cannot be extended beyond 45 days (30 + 15 days). The tribunal referred to various judgments, including Exide Industries Ltd. v. Jitender Kumar Jain, Valency International Pte Ltd. v. Vasudevan & 2 Ors., and others, to highlight that the tribunal does not have the jurisdiction to condone the delay beyond the statutory period.Conclusion:The tribunal concluded that the appeal was filed beyond the prescribed period of 45 days and, therefore, dismissed the application for condonation of delay. Consequently, the appeal was not entertained and was rejected. The tribunal reiterated the importance of adhering to the time limits prescribed under the I & B Code, 2016, and emphasized that the provisions of the code have an overriding effect over other laws.