TaxTMI 
TaxTMI 
2022 (11) TMI 296
X X X X Extracts X X X X
X X X X Extracts X X X X
....r , Sr. Advocate , Ms. Vanita Bhargava , Ms. Wamika Trehan , Ms. Mathili Moondra , Mr. Akshay Goohi , Advocates for R - 3 JUDGEMENT Ashok Bhushan , J : 1. I.A. No. 3349 of 2022 has been filed by the Appellant praying for condonation of delay in filing the Appeal. This Appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "The Code") has been filed by the Appellant on 01st August, 2022 challenging the Order dated 15th June, 2022 passed by the National Company Law Tribunal, Allahabad Bench, Prayagraj (hereinafter referred to as "The Adjudicating Authority") in IA(IB) No. 79/ALD/2022 in CP(IB) No. 107/ALD/2019. By the Impugned Order, the Adjudicating Authority has allowed the I.A. No. 79/ALD/2022 filed by the Resolution Professional for approval of the Resolution Plan. There being delay in filing the Appeal, I.A. No. 3349 of 2022 has been filed by the Appellant seeking condonation of delay. 2. The Application I.A. No. 3349 of 2022 states that the present Appeal has been filed on 47th Day from the date of the Impugned Order. For condonation of delay, two principal submissions have been made by the Learned Counsel for the Appellant. 3. Le....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Application was heard and order was reserved on 13th April, 2022. After one month of reserving the Order on Plan approval Application, I.A. No. 145 of 2022 was filed. It is further contended that benefit of Section 14 of the Limitation Act cannot be claimed by the Appellant. 7. We have considered the submissions of Learned Counsel for the parties and have perused the record. 8. It is an admitted case of the parties that Appeal has been filed by the Appellant against the Order dated 15th June, 2022 on 01st August, 2022 i.e. 47th Day. The first submission of the Appellant is that 30th and 31st day being holiday and Court reopened on 1st August, 2022 only, hence filing the Appeal on 01st August, 2022 is within time. Reliance has been placed on Section 4 of the Limitation Act, 1963. Section 4 is as follows: "4. Expiry of prescribed period when Court is closed. - Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal, or application may be instituted, preferred or made on the date when the Court re-opens. Explanation.- A Court shall be deemed to be closed on any day within the meaning of this section if during ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, 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. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.- For the purposes of this section,- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded. It could thus be seen, that this Court has in unequivocal terms held, that when a litigant bona fide under a mistake litigates before a wrong forum, he would be entitled for exclusion of the period, during which he was bona fide prosecuting such a wrong remedy. Though strictly, the provisions of Section 14 of the Limitation Act would not be applicable to the proceedings before a quasi-judicial Tribunal, however, the principles underlying the same would be applicable i.e. the proper approach will have to be of advancing the cause of justice, rather than to abort the proceedings" 13. Hon'ble Supreme Court in the facts of the above case held that in the Appeal filed before the Appellate Tribunal, the provisions of principle under Section 14 could have been invoked. In paragraph 78 of the above Judgement, following has been laid down: "78. In the present case, perusal of the writ petition would reveal, that it was the specific case of KIAL, that its application, objecting to the application of RP for approval of the resolut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s judgments of this Court including the one in Consolidated Engineering Enterprises vs. Principal Secretary, Irrigation Department and others, which read thus: "21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue; and (5) Both the proceedings are in a court."" 17. From the facts of the present case, it is clear that Appellant is claiming benefit of Section 14 on the basis of I.A. No. 145 of 2022 filed in the same proceeding i.e. C.P. IB No. 107/ALD/2019. In which proceeding, by Impugned Order, I.A. No. 79 of 2022 has been allowed. I.A. No. 145 of 2022 was filed by the Appellan....