2023 (1) TMI 1146 - AT - Insolvency and Bankruptcy

Application for condonation of delay and main appeal dismissed as time-barred; connected pending applications closed.

The tribunal dismissed the application for condonation of delay as not maintainable and rejected the main appeal as time-barred. The connected pending ... Seeking to condone the delay of 17 days in preferring the instant Appeal - Rule of Construction - HELD THAT:- It is latently and patently quite clear that the period of Limitation as per Order of this Tribunal dated 21.10.2022, shall be calculated from the presentation of the Appeal, in the instant case, the Appeal, having been presented by the Appellant, (submission of Appeal papers, through physical mode (on 12.12.2022), on the 47th day, which is beyond the 45 days (30 + 15 days), clearly barred by Limitation - the further delay of 2 days, after 45 days, is beyond a period of Limitation (30 + 15 days), which cannot be condoned, by this Appellate Tribunal, and in this regard, this Tribunal has no power to excuse the same. This Tribunal, on a careful consideration of divergent contentions advanced on either side, and also taking into account of the facts and circumstances of the present case in an encircling manner, comes to a consequent conclusion that the instant Comp. App (AT) (CH) (INS.) No. 13 of 2023, is barred by time, and further that the IA No. 34 of 2023 in CA (AT) (CH) (INS. No.) 13 of 2023, seeking to condone the delay of 14 days, in filing the instant Appeal, is per se, not maintainable, and the delay in question, is not a condonable one. Application dismissed. Issues Involved:1. Condonation of delay in filing the appeal.2. Computation of limitation period for filing the appeal.3. Applicability of Section 10 of the General Clauses Act, 1897.4. Impact of NCLAT Circulars on the limitation period.5. Relevance of Supreme Court judgments on the limitation period.Issue-wise Detailed Analysis:1. Condonation of Delay in Filing the Appeal:The appellant sought to condone a delay of 17 days in filing the appeal against the impugned order dated 26.10.2022. The appellant argued that the delay was mistakenly mentioned as 17 days instead of 14 days, which was an inadvertent error. The appellant contended that the appeal was e-filed on 09.12.2022 (the 44th day) and physical copies were filed on 12.12.2022, the next working day after the 45th day, which fell on a Saturday. The appellant relied on Section 10 of the General Clauses Act, 1897, which allows actions to be considered timely if done on the next working day when the last day falls on a holiday. However, the tribunal found that the appeal was filed beyond the permissible 45 days (30 + 15 days) and dismissed the application for condonation of delay as not maintainable.2. Computation of Limitation Period for Filing the Appeal:The appellant computed the limitation period from the date of the impugned order (26.10.2022) and argued that the appeal was e-filed within the permissible period. The appellant referred to the NCLAT Circular dated 24.12.2022, which stated that the limitation period should be computed from the date of e-filing. However, the tribunal emphasized that the relevant circular in force at the time of filing (21.10.2022) mandated that the date of physical filing should be considered for computing the limitation period. Thus, the appeal was deemed time-barred as the physical filing occurred on the 47th day.3. Applicability of Section 10 of the General Clauses Act, 1897:The appellant invoked Section 10 of the General Clauses Act, 1897, arguing that since the 45th day fell on a Saturday, the physical filing on the next working day (Monday) should be considered timely. The tribunal rejected this argument, stating that the circular in force at the time required the date of physical filing to be considered for limitation purposes, and the appeal was filed beyond the permissible period.4. Impact of NCLAT Circulars on the Limitation Period:The appellant relied on the NCLAT Circular dated 24.12.2022, which allowed the computation of the limitation period from the date of e-filing. However, the tribunal noted that the circular dated 21.10.2022, which was in force at the time of filing, required the date of physical filing to be considered. The tribunal held that the subsequent circular (24.12.2022) was prospective and did not apply retroactively to the appellant's case.5. Relevance of Supreme Court Judgments on the Limitation Period:The tribunal referred to several Supreme Court judgments emphasizing the strict interpretation of limitation periods under the IBC. Notably, in V. Nagarajan v. SKS Ispat and Power Ltd., the Supreme Court held that the limitation period for appeals under the IBC is strictly 30 days, extendable by a maximum of 15 days for sufficient cause, and no further extension is permissible. The tribunal applied this principle, concluding that the appeal was time-barred and could not be entertained.Conclusion:The tribunal dismissed the application for condonation of delay (IA No. 34 of 2023) as not maintainable and rejected the main appeal (Comp. App (AT) (CH) (INS.) No. 13 of 2023) as time-barred. The connected pending applications were also closed.