2022 (9) TMI 1297

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....ates ORDER ASHOK BHUSHAN , J. This is an application under proviso to Section 61(2) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code') praying for condonation of delay in filing the Appeal. The Appeal has been filed against the order dated 06.05.2022 in I.A. No. 1253 of 2021 in C.P. (IB) No. 2521(MB)/2018 filed by the Appellant. By the impugned order the application filed by the Appellant has been rejected. Challenging the order dated 06.05.2022 this Appeal has been filed on 06.07.2022. 2. The case of the Appellant under Delay Condonation Application is that the order was passed by the Adjudicating Authority on 06.05.2022, thereafter, the Appellant approached the Registry of the Adjudicating Auth....

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....n prescribed under Section 61(2) of the Code. Respondent submits that there is delay of more than 15 days beyond 30 days period in filing the Appeal. 4. We have perused the application filed by the Appellant for condonation of delay as well as the reply filed by the Respondent. 5. The order impugned was passed on 06.05.2022. Appellant's case is that order of the NCLT was uploaded on 30.06.2022. His further case is that he applied for the certified copy on 15.06.2022. Under Section 12(2) of Limitation Act, 1963, the requisite period for obtaining certified copy of the order for filing an appeal is to be excluded for computing the limitation of appeal. Section 12(1) and (2) are as follows:- "12. Exclusion of time in legal proce....

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.... Section 12(2), there is delay of only 9 days. 8. The issue as to date from which period of limitation for filing shall commence in reference to an Appeal under Section 61 of the Code has been considered by the Hon'ble Supreme Court in "V. Nagarajan vs. SKS Ispat & Power Ltd. & Ors., (2022) 2 SCC 244". In the case before the Hon'ble Supreme Court, NCLT passed an order on 31.12.2019. The copy of the order was not uploaded until 11-12 March, 2020. Corrected copy of order was uploaded on 20.03.2020. Appellant requested for free copy from the Registry and thereafter filed appeal on 08.06.2020 with the downloaded copy. NCLAT dismissed the Appeal as barred by time which order was challenged before the Hon'ble Supreme Court. One of the question....

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..... 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, which can be extended up to a period of fifteen days, and no more, upon showing sufficient cause. A sleight of interpretation of procedural rules cannot be used to defeat the substantive objective of a legislation that has an impact on the economic he....

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....s Court has had no impact on the rights of the appellant to institute an appeal in this proceeding and the NCLAT has correctly dismissed the appeal on limitation. Accordingly, the present appeal under Section 62 of the IBC stands dismissed." 10. The Hon'ble Supreme Court has held that a litigant has to file an appeal within thirty days which can be extended upto 45 days and not more. In the facts of the said case, Hon'ble Supreme Court held that the period provided for filing an appeal under Section 61(1) against the order dated 31.12.2019 expired on 30.01.2020. The dated of uploading of order as was claimed as 12.03.2020, in the above case, was not given any credence by the Hon'ble Supreme Court while computing the period of limitation ....

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.... entitled to take benefit of Section 12(2) by excluding the period during which certified copy was under preparation. 12. In the present case, as noted above, certified copy is claimed to be applied by the Appellant on 15.06.2022 i.e. after expiry of limitation. We, thus, are of the view that present appeal has been filed beyond 45 days from date of the order dated 06.05.2022 and delay of more than 15 days beyond the period of 30 days cannot be condoned by this Tribunal in exercise of its jurisdiction under Section 61(2) of the I&B Code. 13. Learned counsel for the Appellant has placed reliance on the judgment of this Tribunal dated 02.09.2022 in "Bhawanishankar Harishchandra Sharma vs. Feedback Highways OMT Pvt. Ltd., Company Appeal ....