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TaxTMI 
TaxTMI 
2022 (11) TMI 1155
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.....2022 till 22.06.2022 ('147 Days') in computing the 'Period of Limitation'. Petitioners' / Appellants' Submissions :- 2. The 'Petitioners' / 'Appellants' have filed the Comp. App. (AT)(CH)(Ins) No.337/2022, on being dissatisfied with the 'impugned order' dated 21.01.2022, passed by the 'Adjudicating Authority' (National Company Law Tribunal, Kochi Bench, Kerala) in 'Allowing' MA/76/KOB/2020 in IBA/240/KOB/2019, filed by the 3rd Respondent / Liquidator, seeking direction from the 'Adjudicating Authority', (National Company Law Tribunal, Kochi Bench, Kerala), to 'add' the 'personal properties' of the 'Petitioners' / 'Appellants', into the 'Liquidation Estate' of the 'Corporate Debtor'. 3. It is represented on behalf of the 'Petitioners' / 'Appellants' that as per the ingredients of Section 61 of the Insolvency & Bankruptcy Code, 2016, an 'Appeal', as against the 'Order' of the 'Adjudicating Authority' (National Company Law Tribunal, Kochi Bench, Kerala) should have been filed within '30 Days' from the date of 'Receipt' of the 'Order' of the 'Authority'. In the instant case, the 'impugned order', was passed on 21.01.2022 in MA/76/KOB/2020 in IBA/240/KOB/2019 and uploaded on t....
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....urt of Kerala. 7. The forceful contention advanced on behalf of the 'Petitioners' is that the 'Tribunal', may be pleased to exclude the period from 25.01.2022 till 22.06.2022 ('147 days'), spent by the 'Petitioners' / 'Appellants', in prosecuting the 'Writ Petition' and 'Writ Appeal', before the Hon'ble High Court of Kerala, for the purpose of computing the 'Period of Limitation', in preferring the instant Comp. App. (AT)(CH)(Ins) No.337/2022 , as per Section 14 of the 'Limitation Act 1963'. The Learned Counsel for the 'Petitioners' / 'Appellants' adverts to the following 'dates' for consideration of this 'Tribunal', which are as under: - A Date of the order of the Adjudicating Authority 21.1.2022 B Date on which order was updated 25.1.2022 C Date of filing of Writ Petition 26.1.2022 D Date of Judgment in WP 2832 of 2022 22.4.2022 E Date of filing of WA 537 of 2022 25.4.2022 F Date of Judgment in WA 22.6.2022 G Time Taken and the Date on which the appeal is filed before NCLAT 14 days from 22.06.2022 to 6.7.2022 H Period sought to be excluded 25.1.2022 to 22.6.2022 (147 days) I Normal date for filing ap....
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....held by this Court, that in the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe, that it represents the legislative intent. It is further observed, that the provisions contained in Sections 5 and 14 of the Limitation Act are meant for grant of relief, where a person has committed some mistake. In J.Kumaradasan Nair (2009) 12 SCC 175 : (2009) 4 SCC (Civ) 656, it has been observed, that when sub-section (2) of Section 14 of the Limitation Act per se is not applicable, the same would not mean, that the principles akin thereto would not be applicable. 68. Coming to the facts of the present case, immediately after NCLT pronounced its judgment on 28.11.2019 Connect Residuary (P) Ltd. v. Ricoh (India) Ltd., 2019 SCC Online NCLT 14842 and even before the certified copy was made available on 18.12.2019, KIAL had filed writ petition before the Division Bench of the Bombay High Court on 11.12.2019 on the principal ground, that the procedure followed by NCLT was in breach of principles of natural justice. Such a ground could be legitimately pursued before a writ court. In that sense, it wa....
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....upreme Court (to withdraw the Civil Appeal) on 29.7.2019, an Application for 'Review' of the 'Impugned Order' dated 25.6.2019 (First Impugned Order) bearing CA No.87/ CTB/2019) filed before the 'Adjudicating Authority' and that the 'Review Application' was filed within 30 days from the date of the order of the Hon'ble Supreme Court. 26. It is to be pointed out that the 'Review Application' filed by the Applicant/Appellant before the 'Adjudicating Authority' was pending between August 2019 till January 2020 for approximately 140 days and the 'Adjudicating Authority' ultimately dismissed the 'Review Application' based on 'lack of jurisdiction'. The plea of the Petitioner/Appellant is that the 'Review' is the continuation of 'original proceeding' of Section 7 of the 'Insolvency & Bankruptcy Code'. Therefore, as a matter of abundant caution and to prevent technical objections, being raised in filing of the present 'Appeal', the delay of 193 days in filing the IA No.774 of 2020 has to be excused by this 'Tribunal'. 27. On behalf of the 'Respondent', it is submitted that the IA No.774 of 2020 filed by the Petitioner/Appellant is not maintainable because of the fact that....
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.... 33. It comes to be known that the Petitioner / Appellant has summarized the 'time lines' in a tabular form for ease of convenience, which runs as follows: - Period Event Time Spent 28 June 2019 to 4 July 2019 The time taken from the date of filing for a certified copy of the First Impugned Order to the filing of the interlocutory application in with the Civil Appeal before the Hon'ble Supreme Court. 6 days 4 July 2019 to 29 July 2019 The time taken from filing the Application along with the Civil Appeal filed before the Hon'ble Supreme Court to disposal of the same by the Hon'ble Supreme Court with the express liberty to file review application before the Ld. Adjudicating Authority. 25 days 29 July 2019 to 20 August 2019 Time taken by the Appellant to file the Review Application before the Lt. Adjudicating Authority pursuant to the express liberty granted by the Hon'ble Supreme Court 22 days 20 August 2019 to 10 January 2020 Application and pass the Second Impugned Order 143 days 10 January 2020 to 4 February 2020 Time taken by the Appellant to file the present consolidated Appeal before the Hon'ble NCLAT 25 days &nbs....
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....d the matter, before the Hon'ble High Court. In this connection, the Learned Counsel for the 1st Respondent refers to the 'Decision' of the Hon'ble Supreme Court in 'Kalparaj Dharmshi and another vs Kotak Investment Advisors Limited and another reported in 2021 10 SCC at Page No.401 at Special Page 435, wherein at Paragraph 54, it is observed as under:- 54. ``In the present case, the dates are not in dispute. The Judgment of NCLT is dated 28.11.2019 Connect Residuary (P) Ltd. v. Ricoh (India) Ltd., 2019 SCC OnLine NCLT 14842. As such, as per Section 61 (2) of the I& B Code, the appeal was required to be filed on the prior to 28.12.2019. The appeal could have been filed within a further period of fifteen days, if NCLAT was satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days. As such, the said period would come to an end on 12.1.2020. The certified copy of the impugned judgment of NCLT was made available on 18.12.2019. If the allowance for the said period is granted, the appeal should have been preferred on or prior to 2.2.2020. However, in the present case, the appeal is filed on 18.2.2020. It is also not in dispute, that imme....
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....ntion of an 'Appeal Petition' was filed only on 15.09.2022. This is in 'negation' of the 'Order' of the Hon'ble High Court of Kerala, wherein a 'Direction', was issued to prefer the 'Appeal', before the `Appellate Tribunal' (`while extending the interim order for a period of two weeks, from 22.06.2022'). Already, in preferring the 'Appeal', there was a 'delay' of '147 Days', but for the 'Leave' and 'Liberty', granted by the `Hon'ble High Court of Kerala', the 'Appeal', is not maintainable. 21. The Learned Counsel for the 1st Respondent refers to the 'averments' made by the 'Petitioners' / 'Appellants', in the instant Comp. App. (AT)(CH)(Ins) No.337/2022, wherein at Paragraph No.6, under the caption 'Limitation', it is stated as under:- "The period spent before the High Court was directed to be excluded by virtue of the provisions contained in Section 14 of the Limitation Act, 1963 if any application for condonation of delay was filed. Hence the appeal is preferred along with the application for condonation of delay." 22. It is represented on behalf of the 1st Respondent that the 'Petition' for 'Condonation of Delay', was not filed by the 'Petitioners' / 'Appellants' ....
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....cement 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, 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 health of a nation. 22. On the second question, Rule 22(2) of the NCLAT Rules mandates the certified copy being annexed to an appeal, which continues to bind litigants under the IBC. While it is true that the tribunals, and even this Court, may choose to exempt parties from compliance with this procedural requirement in the interest....
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....an 'Appeal', in terms of the ingredients of Section 61 of the Insolvency & Bankruptcy Code, 2016, they had filed W.P. No.2832/2022, before the Hon'ble High Court of Kerala, on 26.01.2022, despite the fact, that the 'impugned order' of the 'Adjudicating Authority' (National Company Law Tribunal, Kochi Bench, Kerala), passed on 21.01.2022 and the said 'Writ Petition' was 'dismissed' by the Hon'ble High Court of Kerala on 22.04.2022. Also, that the 'Petitioners' / 'Appellants', had filed W.A. No.537/2022 and on 22.06.2022, the Hon'ble High Court of Kerala was inclined to extend the 'Interim Order' for a period of 'Two Weeks from Today', enabling the 'Appellant', to prefer the 'Appeal', before the 'Appellate Tribunal'. 29. According to the 3rd Respondent, the 'Petitioners' / 'Appellants' were to file an 'Appeal', within 'Two Weeks', from the date of the 'Judgment' dated 22.06.2022 and the 'Last Date' for filing an 'Appeal', was on or before 05.07.2022. But, the 'Petitioners' / 'Appellants', have filed the instant Comp. App. (AT) (CH) (Ins) No.337/2022, on 06.07.2022, and as such, there is a further 'delay', caused by the 'Petitioners' / 'Appellants'. 30. The Learned Counsel for t....
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....'Material Papers', being filed). In fact, a mere 'running of the eye', 'contents' of the 'E-Portal' received by this 'Tribunal' (vide at Page No.600 of 'Volume-III' of the 'Appellants' 'Paper Book') exhibits that 'E-filing' of the 'instant Comp. App. (AT) (CH) (Ins) No.337/2022', was made on 06-07-2022 22:07:946. 35. In this connection, this 'Tribunal', on going through the 'Judgment' of the Hon'ble High Court of Kerala at Ernakulam, in W.A. No.537/2022 between M.K. Resely, Kottayam District and 7 Others v Union Bank of India, led by its Chief Manager, Kottayam and 3 Ors., indicates that at Paragraph '24', the Hon'ble High Court of Kerala, was inclined to extend the 'interim order', for a period of 'Two Weeks' from 'Today' (22.06.2022), enabling the 'Appellants', to prefer an 'Appeal', before the 'Appellate Tribunal'. 36. In view of the fact, that the 'Petitioners' / 'Appellants' have indulged in 'Bonafide Litigious Activity', in preferring the W.P. No.2832/2022 and W.A. No.537/2022, before the Hon'ble High Court of Kerala, this 'Tribunal', by construing the ingredients of Section 14 of the 'Limitation Act' 1963, in a liberal manner and by applying 'Equity', permits the exclu....
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.... an order of a 'Tribunal', is provided to an 'Appellate Tribunal', and the order of an 'Appellate Tribunal' can be assailed before the 'Hon'ble Supreme Court'. 4. It comes to be known that the 'Appellants', as 'Petitioners', have preferred IA/990/2022, in the instant Comp. App. (AT) (CH) (Ins) No.337/2022, seeking to exclude the period from 25.01.2022 (uploaded on the website) till 22.06.2022 ('147 days') in computing the 'period of Limitation' for filing the instant Comp. App. (AT) (CH) (Ins) No.337/2022 and this 'Tribunal', after contest, has allowed the IA/990/2022, `without Costs', for resorting to a 'Bonafide Litigious Activity', with 'Good Faith' and 'Due Diligence'. 5. It cannot be forgotten that the Hon'ble High Court of Kerala, had permitted the 'Appellants' in W.A. No.537/2022, to prefer an 'Appeal', before this 'Appellate Tribunal', within 'Two Weeks', from the date of the 'Judgment' (dated 22.06.2022) and going by the 'tenor and spirit' of the 'Judgment' of the Hon'ble High Court of Kerala in W.A. No.537/2022 dated 22.06.2022, it is quite latently and patently evident that the 'Last Date' for preferring the instant Comp. App. (AT) (CH) (Ins) No.337/2022, was to be....