2024 (3) TMI 80 - AT - Insolvency and Bankruptcy

NCLAT dismisses delay condonation application for appeal filed 5 days beyond condonable period

Mayur Ratilal Suchak & Anr. Versus Birendra Kumar Agarwal

The NCLAT Principal Bench dismissed a delay condonation application for an appeal filed 5 days late. The appellant sought exclusion of the period during ... Condonation of delay of only 5 days in filing the Appeal - exclusion of period during which certified copy was under preparation - HELD THAT:- Appellant is entitled only for exclusion of period taken for preparation of certified copy as per Section 12 of the Limitation Act. Present is not a case where Appellant is claiming benefit of exclusion of period during which certified copy was under preparation and Appellant is pressing its case on the basis of uploading of the Order on 22nd November, 2023. Judgment of the Hon’ble Supreme Court in V NAGARAJAN VERSUS SKS ISPAT AND POWER LTD. & ORS. [2021 (10) TMI 941 - SUPREME COURT] does not render any help to the Appellant nor the Judgment of the Hon’ble Supreme Court in SANJAY PANDURANG KALATE VERSUS VISTRA ITCL (INDIA) LIMITED AND OTHERS [2023 (12) TMI 1249 - SUPREME COURT] comes to aid of the Appellant. As noticed in Sanjay Pandurang Kalate both the counsels were present and there was no dispute between the counsel that no substantive order was passed on 17th May, 2023 by the Adjudicating Authority whereas in the present case order was dictated on 09th November, 2023 which is clear from the report submitted by the Registrar of NCLT. When the order was dictated in the presence of the Learned Counsel for the appellant he cannot be heard in saying that Appellant is not aware of the order and limitation shall not commence from the date of the order and the limitation shall commence only from the date when order is uploaded. In the present case, the order having been dictated on 09th November, 2023, limitation shall commence from 10th November, 2023 and 30 days period shall come to an end on 09th December, 2023 and 15 days condonable period shall also come to an end on 24th December, 2023 whereas the Appeal was e-filed on 27th December, 2023 i.e. beyond 15 days condonable period. The Appeal having been field beyond 15 days after expiry of the limitation, the delay condonation application cannot be allowed and the same is dismissed. Issues Involved:1. Condonation of delay in filing the Appeal.2. Commencement of the limitation period for filing the Appeal.3. Applicability of precedents on limitation and delay condonation.Summary:Issue 1: Condonation of Delay in Filing the AppealThe application (I.A. No. 85 of 2024) sought condonation of a 5-day delay in filing the Appeal against the Order dated 09th November 2023. The Appeal was e-filed on 27th December 2023. The Appellant argued that the Order was uploaded on 22nd November 2023, and the 30-day period prescribed under Section 61(2) expired on 22nd December 2023. The delay was attributed to the time taken to approach several advocates and prepare the Appeal.Issue 2: Commencement of the Limitation Period for Filing the AppealThe Tribunal examined whether the limitation period commenced from the date of pronouncement (09th November 2023) or from the date of uploading (22nd November 2023). The Respondent contended that the limitation period should start from the date of pronouncement, as the Order was dictated in open court in the presence of the Appellant's counsel. The Tribunal agreed, stating that the limitation starts from the date of pronouncement, and the Appellant was expected to apply for a certified copy diligently.Issue 3: Applicability of Precedents on Limitation and Delay CondonationThe Appellant relied on the Supreme Court judgment in *Sanjay Pandurang Kalate Vs. Vistra ITCL (INDIA) Limited & Ors.*, arguing that the limitation should start from the date of uploading if the case was not listed for pronouncement. However, the Tribunal distinguished the present case, noting that the Order was dictated in open court. The Tribunal also referenced the Supreme Court's decision in *V. Nagarajan Vs. SKS Ispat and Power Limited & Ors.*, emphasizing the obligation to apply for a certified copy upon pronouncement.Conclusion:The Tribunal concluded that the limitation period commenced on 10th November 2023, making the 30-day period end on 09th December 2023 and the 15-day condonable period end on 24th December 2023. Since the Appeal was filed on 27th December 2023, beyond the condonable period, the delay condonation application was dismissed, and the memo of appeal was rejected.