TaxTMI 
TaxTMI 
2023 (1) TMI 350
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....he 'impugned order' dated 26.08.2022, was passed by the 'Adjudicating Authority', ('National Company Law Tribunal', Special Bench - I, Chennai) in CP/IB/113/CHE/2021. Appellants' Pleas: 3. The version of the Petitioners / Appellants is that, the Certified Copy of the 'impugned order' dated 26.08.2022, refer to supra, was provided to the 'Petitioners / Appellants', on 15.09.2022 and it was uploaded on the Website of the 'Adjudicating Authority', on the same date, meaning thereby, that the grounds on which the 'Application' came to be 'dismissed', was known to the 'Petitioners / Appellants', only on 15.09.2022, after securing the copy of the 'impugned order', the 'Petitioners / Appellants', sought a 'legal opinion' and based on the opinion, the 'Draft Appeal' with grounds was prepared and finalised, to assail the 'impugned order'. 4. It is pointed out on behalf of the Petitioners / Appellants that the Advocate for the Appellants, was not available during the 'Dussera Holidays', due to which, there was no substantial work done, during a period of five days. Also that, the 'Petitioners / Appellants', and their 'Advocates', being based out of Delhi, took additional measures to ....
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....om the 'Period of Limitation', in view of Section 12 (2) of the Limitation Act, 1963, and as per decision of the Hon'ble Supreme Court of India in the matter of V. Nagarajan v. SKS Ispat and Power Limited and Ors., (vide Civil Appeal No.3327 of 2020 dated 22.10.2021). 8. The Learned Counsel for the Petitioners/Appellants contends that the placing of reliance by the Respondent, in respect of the decisions, the same are inapplicable, because in those matters, wherein, the Appellants had either (a) not applied for a certified copy at all (as was the case in "Nagarajan" (supra) (b) or applied for a certified copy of order well after the statutory period of limitation of 30 days had ended (c) or had also excluded the period before making the application for a certified copy of the impugned order thereof. 9. The Learned Counsel for the 'Petitioners/Appellants', while rounding up, prays for 'allowing', the IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022, by 'condoning the delay of 5 days, in preferring the instant 'Appeal'. Appellants' Citations: 10. The Learned Counsel for the Petitioners / Appellants, refers to Paragraph 23 of the decision of the Hon'ble Su....
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.... day, from the date of passing of the 'impugned order' dated 26.08.2022, passed by the 'Adjudicating Authority' ('National Company Law Tribunal', Special Bench - I, Chennai) in CP/IB/113/CHE/2021, which 'exceeds the 30 days' permissible period', under the I & B Code, 2016, and further 'period of 15 days' (under 'sufficient cause'), and hence, the instant 'Appeal', is 'barred by time'. 13. According to the Learned Practising Company Secretary for the Respondent, it is for the 'Litigants', to 'pursue their remedy', in a 'timely manner', and that the I & B Code, 2016, is a special 'Code', 'overriding' other laws. 14. It is the plea of the Respondent that the Insolvency and Bankruptcy Code, 2016, shall 'prevail' over the 'Limitation Act, 1963', and further that Section 12 (2) of the Limitation Act, 1963, cannot 'override' the 'provisions of the I & B Code, 2016'. Also that, the Commencement Date for calculating the time period shall begin from 26.08.2022, the 'date of passing of the 'impugned order', by the 'Adjudicating Authority' ('Tribunal'). 15. The Learned PCS for the Respondent points out that the 'impugned order', was passed by the 'Adjudicating Authority', in CP/IB/113....
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.... 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 [Union of India v. Popular Construction Co., (2001) 8 SCC 470." 17. Also, the Learned PCS for the Respondent, adverts to the Judgment of the Hon'ble Supreme Court in V. Nagarajan's case (Vide Civil Appeal No. 3327 of 2020 dated 22.10.2021), wherein, at Paragraph 10, it is observed as under: 10. "For determining the present appeal, the question of limitation for filing appeals would have to be answered by construing the provisions of the IBC and the Limitation Act, with the former enactment having an overriding effect. This position has also been adopted by a three judge bench of this....
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....the ground, that KIAL had an alternate and efficacious remedy available under Section 61 of the I&B Code and as such, it was relegated to the alternate remedy available in law." 19. The Learned PCS for the Respondent, cites the Order dated 29.04.2022 of the Hon'ble Supreme Court of India, in Safire Technologies Pvt. Ltd. v. Regional Provident Fund Commissioner & Anr. (vide Civil Appeal No. 2212 of 2021), wherein, it is observed as under: "Corporate Insolvency Resolution Process ('CIRP') of Maruti Koatsu Cylinders Limited was initiated before National Company Law Tribunal ('NCLT') Ahmedabad on 26.04.2018. The resolution plan was approved by the Committee of Creditors ('CoC') on 04.04.2019 and was also approved by the NCLT on 22.10.2019. Thereafter, the Respondent No.1, Regional Provident Fund Commissioner filed a claim before the Resolution Professional on 09.10.2019 regarding the provident fund dues which was not considered. An appeal before the National Company Law Appellate Tribunal ('NCLAT') was filed on 14.12.2020 by Respondent No. 1 against the order dated 22.10.2019 approving the resolution plan. By an Order dated 19.01.2021, notice was issued by the NCLAT in this....
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.... view that the Appellate Tribunal committed an error in issuing notice in an appeal that was filed by Respondent No.1 with delay of 388 days. The appeal is, accordingly, allowed. Pending application(s), if any, shall stand disposed of." 20. The Learned PCS for the Respondent, relies on the Order of the Hon'ble High Court of Delhi dated 10.09.2014, in United Insurance Co. Ltd. v. Manish Kumar Gupta in O.M.P. 1127 of 2013, wherein, at Paragraphs 16 to 21, it is observed as under: 16. " Relying on the findings in Shree Ram Construction Co.'case (supra), the division bench of this court in case 2012 (3) ARBLR349 (Delhi) titled as Delhi Transco Ltd. & Anr. Vs. Hythro Engineers Pvt.Ltd. has observed as under: 9. ..... ..... .... If the delay in re-filing is such as to go well and substantially beyond the period of three months and thirty days, the matter would require a closer scrutiny and adoption of more stringent norms while considering the application for condonation of delay in re-filing, and the Court would conduct a deeper scrutiny in the matter. The leniency shown and the liberal approach adopted, otherwise, by the Courts in matter of condonation....
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....e registry has shown the filing date as 12.11.2013. The question is if the objections were not removed within the given time by registry, but is done beyond the period of 30 days of raising the objections in such situation should this refiling be considered as fresh institution? The answer lies in Part G of Delhi High Court Rules which relates to the proceedings in the High Court of Delhi and Chapter I, Part A (a) deals with Judicial business relating to presentation and reception of Appeals, Petitions etc. and Rule 5 reads as under: 5. Amendment-- The Deputy Registrar Assistant Registrar, Incharge of the Filing counter, may specify the objections (a copy of which will be kept for the Court Record) and return for amendment and re- filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memorandum of appeal, for the reason specified in Order XLI, Rule 3, Civil Procedure Code. (2) If the memorandum of appeal is not taken back for amendment within the time allowed by the Deputy Registrar, Asstt. Registrar, in charge of the filing Counter under sub-rule (1), it shall be registered and listed before the Court for its dis....
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....e endeavour of the court should not be to make the statutory provisions redundant or otiose"." 21. The Learned PCS for the Respondent, adverts to the 'Order' of the Hon'ble High Court of Rajasthan dated 21.02.2019, in Jagmal Singh v. State of Rajasthan, wherein, it is observed as under: "The appeal is reported to be barred by limitation for 11 days. The only reason assigned for condonation of delay in filing the appeal is that due to ongoing vacation of 'Navratri', and nonavailability of counsel in Jodhpur, appeal could not give instructions for filing of appeal. In our considered opinion, the reason assigned for not filing the appeal within limitation, can hardly be considered a sufficient cause and, therefore, the application under Section 5 of the Limitation Act seeking condonation of delay, deserves to be rejected. However, in the interest of justice, we have examined the matter on merits as well. We are of the considered opinion that the relief sought by the writ-petitioner/appellant regarding rectification in the inventory after inordinate delay of 54 years, has rightly been dismissed by learned Single Judge on the ground of inordinate de....
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....llate Authority' (National Company Law Appellate Tribunal) to condone the delay beyond the 'prescribed period', enunciated under the Insolvency & Bankruptcy Code, 2016. Looking at from any angle, and also keeping in mind the decision of the Hon'ble Supreme Court in V. Nagarajan V SKS Ispat and Power Ltd.& Ors., reported in (2022) 2 SCC at Page 244 Spl. Pages 257 and 265, this 'Tribunal' holds that IA/460/2022 seeking to condone the delay of '1027 days' in preferring the 'instant Comp App (AT)(CH)(Ins) No.209/2022' is 'devoid of merits' and it fails. In fine, IA/460/2022 in Comp App (AT)(CH)(Ins) No.209/2022 is dismissed. No Costs." 24. It is projected on the side of the Respondent, that the Judgment of this 'Tribunal', dt. 01.12.2021 (Three Member Bench), in Comp. App (AT) (INS.) No. 918 / 2021, etc., between M/s. Hasmukh N. Shah & Associates V. M/s. Victoria Entertainment Pvt. Ltd., wherein, at Paragraphs 31 and 32, it is observed as under: 31. "In the present case, the case of the Appellant is that he applied certified copy of the order twice firstly on 21.01.2019 and secondly on 29.07.2021. Applying the ratio of the judgment of the "Sagufa Ahmed", i....
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.... Court was prima facie of the view that Financial Creditor being a Co-operative Bank, it could not invoke the provisions of the SARFAESI Act, 2002. In the above context, Section 14 of the Limitation Act, 1963 came for consideration before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that benefit of proceedings under the SARFAESI Act, 2002 is to be given to the Financial Creditor under Section 14 since prima facie the proceedings before the SARFAESI Act, 2002 were suffering from defect of jurisdiction. In Paragraphs 70, 84, 85 & 86, following was laid down:- "70. Section 14 (2) of the Limitation Act provides that in computing the period of limitation for any application, the time during which the petitioner had 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 like nature, is unable to entertain it. The conditions for exclusion are that the earlier proceedings should have been for the same relief, the proceedi....
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.... order of the High Court staying the proceedings under the SARFAESI Act, on the prima facie ground of want of jurisdiction is excluded, the proceedings under Section 7 of IBC are still within limitation of three years." 24. The above judgment does not come to any aid of the Appellant since the benefit under Section 14(2) of the Limitation Act was given in the above case on the prima facie ground that SARFAESI proceedings is without jurisdiction and which proceedings were already stayed by the High Court by the interim order on the aforesaid ground. As noted above, proceedings of Writ Petition before the Bombay High Court does not suffer from any defect of jurisdiction, hence, judgment of the Hon'ble Supreme Court in "Sesh Nath Singh and Ors." (supra) does not come to any aid of the Appellant. 25. In view of the foregoing discussion, we are of the view that this Appeal against the judgment dated 11.11.2019 of the Adjudicating Authority filed in this Tribunal on 17.06.2021 is clearly barred by time and no case has been made out to claim benefit of Sections 5 and 14(2) of the Limitation Act to the Appellant. The Appeal is dismissed as barred by time." 26.....
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....3) of the Rules, 2016 'speaks' of furnishing 'Certified Copy of every Order', passed by the 'Tribunal' to be given to the 'Parties'. 8. More importantly, Section 421 (3) of the Companies Act, 2013 provides that 'Every Appeal' under Sub-Section (1) shall be filed within a period of forty-five days from the date on which a copy of the 'Order' of the 'Tribunal' is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed. However, a mere running of the eye of the 'ingredients of Section 61 (2) of the Insolvency & Bankruptcy Code, 2016, unerringly exhibits that the said 'Section' is conspicuously silent about the 'words', a copy of the order is made available to the person aggrieved, etc." 28. The Learned PCS for the Respondent, relies on the 'Order' of this 'Tribunal', dated 04.11.2022 in IA No. 3349 of 2022 in Comp. App AT INS No. 1124 of 2022, between Isolux Corsan India Engineering & Constructions Pvt. Ltd. through its Liquidator, CA Rajeev Bansal v. Shailesh Verma, Erstwhile Resolution Professional of South East U.P. Power Transmission Company Ltd. & 2 Ors., wherein, at Paragraph 22, it is observed as under: ....
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....', in regard to the preferring of an 'Appeal' (after the 'Expiry of 30 days period'), then, 'such period, shall not exceed 15 days', as per Section 61 (2) of the Code. Admittedly, the 'completion of 45 days' (30 + 15 days), was on 09.10.2022. In effect, the maximum 45 days being the outer limit (30 + 15 = 45 days), beyond which, the 'Appellate Tribunal' ('NCLAT), is 'bereft' of any power, to 'condone the delay', in the teeth of the mandate, prescribed under the I & B Code, 2016, as opined by this 'Tribunal'. 32. Apart from the above, the ingredients of Section 61 of the I & B Code, 2016, do not visualise that an 'Aggrieved Person' / 'Concerned Party', is to wait till he / it is in receipt of a 'Certified Copy' of the 'impugned order', for preferring an 'Appeal', before the 'National Company Law Appellate Tribunal'. 33. At this juncture, this 'Tribunal', relevantly points out that the 'Law of Limitation', is an 'Adjective Law', and is 'Lex Fori'. A 'Legal Remedy', is to be kept 'alive', for a 'Legislatively prescribed period of time'. 34. Ordinarily, in 'Law', if a 'Party', is not 'vigilant', about his 'right', he must explain the 'delay' in question, to the 'subjective sat....