TaxTMI 
TaxTMI 
2021 (10) TMI 1083
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....31 of the Insolvency and Bankruptcy Code, 2016 (in short 'I&B Code'). The Parties are represented by their original status in the Company Petition for the sake of convenience. 2. This Appeal was filed on 29 January 2020 against the impugned order dated 22 October 2019 along with the Application for condonation of delay of 52 days in filing the Appeal under Section 5 of the Limitation Act, 1963, supported by an affidavit. 3. The Appellant contends that the Impugned Order was passed on 22.10.2019. By way of a Letter dated 26.11.2019 filed before the Registrar of the Hon'ble National Company Law Tribunal, bearing the subject line "Speaking to the minutes of the order dated 22.10.2019 and 16.08.2019", has disputed the finding of the Hon'ble Tribunal in paragraphs 3.3 and 3.4 of the impugned order, wherein the Hon'ble Tribunal erroneously recorded that; "3.3 This Adjudicating Authority would like to refer its order dated 16.08.2019. During the hearing on 16.08.2019, during the hearing on 16.8.2019, the ld. Lawyer appearing on behalf of the ARCIL fairly submitted that though he has filed an IA bearing No. IA. No. 402 of 2019 having certain reservations over the Re....
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....pellant on 29 January 2020. The cause of action of the Appeal accrued on 19 December 2019, when the order was passed by the learned Adjudicating Authority, dismissing the letter dated 26 November 2019 filed by the Appellant. 6.4 Although the Application, IA 75 of 2020, is filed under section 5 of the Limitation Act 1963 to condone the delay of 52 days in filing the Appeal along with the affidavit. But, in the additional written submission, the Appellant has stated that the present Appeal is filed on 29 January 2020, i.e. within 41 days of the passing of the order dated 19 December 2019. Thus, the present Appeal is filed within the period of Limitation as per Section 61 (2) of the IBC 2016. 6.5 It is further submitted that in the Application for the condonation of delay, I.A. 75 of 2020, the delay of 52 days was inadvertently mentioned. Thus, it may be considered as 41 days from 19 December 2019 to 29 January 2020. Further, the time period from passing the impugned order dated 22 October 2019 to the order dated 19 December 2019 should be considered a continuous cause of action. Therefore, the Appeal filed by the Appellant on 29 January 2020 is well within the period of Limitation.....
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....t has placed reliance on the following judgements of the Hon'ble Supreme Court; a) Judgement passed in Civil Appeal No.1821 of 2021 dated 30 June 2021 Maharashtra State Electricity Distribution Company Limited versus Wardha Power Generation Limited and Another. b) Civil Appeal No.6187 of 2019 dated 14 September 2021 National Spot Exchange Ltd Versus Anil Kohli dated 14 September 2021. c) Civil Appeal No. 2943-2044 dated 10 March 2021 Kalpraj Dharmshi versus Kotak Investment Advisors. 8. ANALYSIS 8.1 We have heard the argument of the learned Counsel for the parties about condonation of delay 52 in filing the Appeal and perused the record. 8.2 Admittedly this Appeal has been filed against the impugned order dated 22 October 2019, and the Appeal was filed on 29 January 2020 with an Application for condonation of delay of 52 days. Therefore, the present Appeal has been filed 98 days after passing the impugned order, i.e., a delay of 68 days, beyond 30 days, prescribed under Section 61 (2) of the IBC. 8.3 In the case of National Spot Exchange Limited v Anil Kohli, Resolution Professional For Dunar Foods Limited 2021 SCC OnLine SC 716 Hon'ble Supreme Court has held; "....
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....be condoned as per Section 61(2) of the IB Code. 22. An identical question came to be considered by this Court in the case of Popular Construction Co. (supra). While considering Section 34 of the Arbitration and Conciliation Act, 1996 which provided that an application for setting aside of the award cannot be made after three months and it further provided that if the court is satisfied that the applicant was prevented by sufficient cause from making an application within the said period of three months, it may entertain the Application within a further period of thirty days, but not thereafter, after considering Section 29(2) of the Limitation Act and after observing that "Arbitration & Conciliation Act, 1996 is a special law" and that Section 34 of the Arbitration & Conciliation Act, 1996 provides for a period of Limitation different from that prescribed under the Limitation Act, ultimately this Court held that Section 5 of the Limitation Act shall not be applicable as the legislature has prescribed a special limitation for the purpose of the Appeal as provided under Section 34 of the Arbitration & Conciliation Act, 1996. In paragraphs 11 & 12, it is observed and held as under....
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....d copy mandatory for an appeal to the NCLAT against an order passed under the IBC - must be based on a harmonious interpretation of the applicable legal regime, given that the IBC is a Code in itself and has overriding effect. Sections 61(1) and (2) of the IBC consciously omit the requirement of Limitation being computed from when the "order is made available to the aggrieved party", in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of the IBC, the aggrieved party is expected to exercise due diligence and apply for a certified copy upon pronouncement of the order it seeks to assail, in consonance with the requirements of Rule 22(2) of the NCLAT Rules. Section 12(2) of the Limitation Act allows for an exclusion of the time requisite for obtaining a copy of the decree or order appealed against. It is not open to a person aggrieved by an order under the IBC to await the receipt of a free certified copy under Section 420(3) of the Companies Act 2013 read with Rule 50 of the NCLT and prevent Limitation from running. Accepting such a construction will upset the timely framework of the IBC. The litigant has to file its Appeal within thirty days, whic....
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....e entirely preposterous contentions about the cause of action claiming to be alive even after 22 October 2019 based on certain representation given by the Appellant to the Registrar of the NCLT regarding wrong/inadvertent recording of the submissions of the Counsel of the Appellant and that the order on the same was reserved on 19 December 2019. The Appellant has failed to disclose as to on what Application/Petition orders were reserved on 19 December 2019, and be that as it may, it is not the case of the Appellant that it filed an Application for clarifications/modification of the impugned order which was subsequently allowed and thereafter the present Appeal has been filed. 8.7 Admittedly the present Appeal has been filed against the impugned order dated 22 October 2019. Thus, the preposterous averments of the Appellant seeking to justify the delay in filing the Appeal do not render the present Appeal to be within Limitation. Accordingly, the present Appeals suffers from delay beyond the condonable period of 15 days under the proviso of Section 61 (2) of the IB code, hence liable to be dismissed at the threshold. 8.8 Based on the settled position law as laid down by Hon'ble ....