TaxTMI 
TaxTMI 
2022 (1) TMI 217
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....the case are:- 'New Phaltan Sugar Works Limited' (Corporate Debtor) was put under Corporate Insolvency Resolution Process (CIRP) by order dated 22.02.2019 passed by the Adjudicating Authority. The Appellant i.e. 'Central Board of Trustees, Employees' Provident Fund Organization' filed a claim for a sum of Rs. 4,40,77,899/- which was duly admitted by the Interim Resolution Professional (IRP). In the Resolution Plan, the Provident Fund dues of Rs. 4,40,77,899/- were accepted to be paid 100% within three months. The Appellant was not party to the proceeding before the Adjudicating Authority. Writ Petition No. 12386 of 2019- "Shri Dutt India Private Limited and Anr. vs. The Government of India & Ors." was filed in the Bombay High Court where the Appellant before us was Respondent No.3. The Writ Petitioner before the Bombay High Court claimed to be purchaser of the Corporate Debtor. Before the Bombay High Court, it was submitted on behalf of the Respondent No.3 (Appellant before us) that their Provident Fund dues are to the tune of Rs. 23 Crores approx. and Respondent No.3 (Appellant before us) proposes to either file Review Petition before the NCLT or challenge the order dated 11.11....
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.... Court in Suo Motu Writ Petition No. 03 of 2020 since the limitation of filing Appeal has long expired before order was passed by the Hon'ble Supreme Court in Suo Motu Writ Petition giving benefit of limitation w.e.f. 25.03.2020. It is submitted that the Appellant is not entitled for the benefit of Section 14(2) since the proceeding before the Bombay High Court cannot be said to be proceeding having defect of jurisdiction or any other similar cause. 8. Learned Counsel for the parties in support of their respective submissions has cited judgments of the Hon'ble Supreme Court and this Tribunal. 9. There is no dispute between the parties with regard to (a) the Appellant was not party to CP No. 2956/2018 although they had filed their claim which was accepted by the Insolvency Resolution Professional; (b) Appellant was well aware of the order dated 11.11.2019 by 03.12.2019 which fact is recorded in the order of the Bombay High Court dated 03.12.2019 passed in W.P No. 12386 of 2019. 10. From the submissions of the Learned Counsel for the parties and material on record, following issues arise for consideration in the present Appeal:- (i) Whether limitation for filing the....
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....e appellants, that the period of limitation of 45 days prescribed in Section 421(3) would start running only from the date on which a copy of the order of the Tribunal is made available to the person aggrieved. It is also true that under Section 420(3) of the Act read with Rule 50, the appellants were entitled to be furnished with a certified copy of the order free of cost. 13. Therefore if the appellants had chosen not to file a copy application, but to await the receipt of a free copy of the order in terms of Section 420(3) read with Rule 50, they would be perfectly justified in falling back on Section 421(3), for fixing the date from which limitation would start running. But the appellants in this case, chose to apply for a certified copy after 27 days of the pronouncement of the order in their presence and they now fall back upon Section 421(3)." 15. The above was a case where certified copy of the order of the NCLT was applied within period of limitation i.e. within period of one month. The Hon'ble Supreme Court held that when they had applied for certified copy of the judgment after 27 days of the pronouncement of the order they cannot fall back on Section 421(3) ....
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.... a correct copy of the order was not available until 20 March 2020, the appellant would not have received a certified copy in spite of the application till such date and accordingly received the benefit of the suo motu order of this Court which came into effect on 15 March 2020. However, in the absence of an application for a certified copy, the appeal was barred by limitation much prior to the suo motu direction of this court, even after factoring in a permissible fifteen days of condonation under Section 61(2). The Court is not empowered to condone delays beyond statutory prescriptions in special statutes containing a provision for limitation. D Conclusion 21. The answer to the two issues set out in Section C of the judgement- (i) when will the clock for calculating the limitation period run for proceedings under the IBC; and (ii) is the annexation of a certified 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 limitatio....
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....berty to take appropriate action." 18. When the Appellant himself stated before the Bombay High Court that they intend to challenge the order dated 11.11.2019 there was no occasion for him to wait till 05.02.2021 for obtaining a certified free of cost copy and file an Appeal. He has disclosed their intention to file an Appeal on 03.12.2019. He cannot be allowed to contend that since he received certified copy (free of cost) on 05.02.2021, his Appeal is within time. ISSUE NO. (2):- 19. Now coming to Issue No. (ii) i.e. claim of the Appellant to receive the benefit of judgment of the Apex Court in Suo Motu Writ Petition No. 03 of 2020. The present is a case where order was passed on 11.11.2019 and 30 days' period expired on 10.12.2019. The order of Suo Motu Writ Petition was relied. The Hon'ble Supreme Court in the aforesaid order directed for extension of limitation from 15.03.2020 due to the COVID-19 Pandemic. The limitation for filing the Appeal of the Appellant long expired much before 15.03.2020, hence, the benefit of order of the Hon'ble Supreme Court dated 23.03.2020 in Suo Motu Writ Petition cannot be availed by the Appellant. ISSUE NO. (3):- 20. Now coming to ....
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....s Writ Petitioner. However, there is another pre-condition of applicability of Section 14(2) which is not fulfilled by the Appellant. Section 14(2) contains a pre-condition i.e. "where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it". 22. Thus, the benefit of Section 14(2) can be claimed of the period during which bonafide proceeding is prosecuted in a Court which due to defect of jurisdiction or other cause of a like nature, is unable to entertain it. The present is not a case where Bombay High Court was unable to entertain the Writ Petition which was filed and pending in the Bombay High Court. Writ Petition was filed under Article 226 of the Constitution of Indian and it cannot be accepted that High Court has no jurisdiction to entertain the Writ Petition. Thus, the benefit of Section 14(2) as claimed by the Appellant cannot be extended in the present case. 23. Learned Counsel for the Appellant has placed reliance on the judgment of the Hon'ble Supreme Court in "Sesh Nath Singh and Ors. vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. & Ors.- Civil Appeal No. 9198 of 2019 (....
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....terminated. The proceedings have however been stayed by the High Court by an interim order, on the prima facie satisfaction that the proceedings initiated by the financial creditor, which is a cooperative bank, was without jurisdiction. The writ petition filed by the Corporate Debtor was not disposed of even after almost four years. The carriage of proceedings was with the Corporate Debtor. The interim order was still in force, when proceedings under Section 7 of the IBC were initiated, as a result of which the Financial Creditor was unable to proceed further under the SARFAESI Act. 86. In the instant case, even if it is assumed that the right to sue accrued on 31.3.2013 when the account of Corporate Debtor was declared NPA, the financial creditor initiated proceedings under SARFAESI Act on 18th January 2014, that is the date on which notice under Section 13(2) was issued, proceeded with the same, and even took possession of the assets, until the entire proceedings were stayed by the High Court by its order dated 24th July 2017. The proceedings under Section 7 of the IBC were initiated on 10th July 2018. 87. In our view, since the proceedings in the High Court wer....