TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 920
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.... creditor against M/s Carnation Auto India Pvt. Ltd. (Corporate Debtor). The said petition i.e. CP No. (IB)- 302(ND)/2017 was admitted on 25.09.2017 by the Adjudicating Authority (National Company Law Tribunal, New Delhi Bench at New Delhi) and vide order dated 01.08.2018 liquidation of the Corporate Debtor was ordered and the RP was directed to act as the Insolvency Liquidator. The Liquidator filed an application bearing CA No. 16/ND/2019 under Section 43, 45, 50 & 66 of the Code for avoidance of transactions. The said application has been dismissed vide the order dated 24.07.2020. The present appeal has thus been filed against the said order by the Liquidator. 2. Mr. Jagdish Khattar (since deceased) and his two sons, namely, Kunal Khattar and Gautam Khattar have been arrayed as Respondents in this appeal besides the other Respondents. Ms. Varsha Banerjee, Adv. appearing on behalf of the Respondent No. 1 had informed the Tribunal on 12.07.2021 about the unfortunate demise of Respondent No. 1. The order was recorded on 12.07.2021 in the following manner:- "Today the matter is listed for directions. Nobody gave appearance on behalf of the Appellant. It is informed that the Respon....
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....nt application is filed for seeking the aforesaid direction. 3. At this stage, Mr. Varsha Banerjee, has put in appearance on behalf of the Respondent No. 2 and 3. 4. We have heard counsel for the parties and perused the record. 5. As per Order 22 of CPC, legal heirs of deceased Respondent (s) has to be impleaded and for that matter, if the details of the legal heirs are not in possession of the Appellant then it is rather the bounden duty of the Counsel appearing on behalf of the Respondent No. 1 to file such an application but in this case it could be suffice to say that Respondent No. 1 (Ms. Varsha Banerjee) shall provide complete details of the legal heirs of the deceased Respondent No. 1 (Jagdish Khattar). Let the needful be done on or before 05th September, 2022. With these observations, the present application is disposed of." 6. Thereafter, the Appellant filed an application i.e. I.A. No.3437 of 2022 for bringing on record the legal representatives of deceased Respondent No. 1 in which notice was issued on 20.09.2022 and at that time Ms. Varsha Banerjee, Adv. accepted notice on behalf of the proposed LRs and requested for time to file reply as according to her wif....
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....n that date i.e. 17.10.2022 was passed as under:- "Counsel for the Appellant has submitted that Respondent No. 1 (Jagdish Khattar) died on 26.04.2021. His two sons are already party to the lis but he filed an application bearing I.A. No. 2693 of 2021 on 29.11.2021 for a direction to Respondent No. 1 to provide complete details of his Legal Representatives. The said application was decided on 24.08.2022 and after obtaining the details, another application bearing I.A. No. 3473 of 2022 is filed to implead the widow of Jagdish Khattar as well besides his two sons. Reply of this application has been filed by the Respondent who has raised the issue of limitation as according to her, the limitation to implead the LRs of the deceased Respondent is 90 days, in terms of Article 120 of the limitation Act, 1963. In this regard, Counsel for the Appellant has submitted that the issue of limitation came up before the Hon'ble Apex Court in MA No. 665 of 2021 in RE: Cognizance for extension of limitation, which was disposed of on 27.04.2021 and thereafter, another Miscellaneous Application No. 21 of 2022 was filed in the same matter which was decided on 10.01.2022. The relevant observations of t....
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....itation but Counsel for the Respondent while referring to the aforesaid order of the Hon'ble Apex Court has submitted that the application is still beyond the period of limitation. Counsel for the Appellant has submitted that the Appellant filed the application for seeking the details of the LRs of R1 on 29.11.2021, which was eventually decided on 24.08.2022 and the application was filed on 12.09.2022. He, however, prays for an adjournment in order to examine the issue as to whether the Appellant is still required to file an application under Section 5 of the Limitation Act, 1963 for condonation of delay, if any, in filing of the application for impleadment of the LRs of R1. Counsel for the Respondent has also raised the issue that wife of deceased R1 cannot be impleaded as a party because she has nothing to do with the affairs of the company of which R1 was the director. Adjourned to 16th November, 2022." 9. The Appellant then filed an application i.e. I.A. No. 4401 of 2022 for condonation of delay in which the following order was passed on 01.12.2022: "This Application is filed under Section 5 of the Limitation Act, 1963 for seeking condonation of delay of 427 day....
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....produced as under:- "This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/ appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State). To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such 2 proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the not....
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....ther proceedings, irrespective of the period of limitation prescribed under the general or special laws, shall stand extended with effect from 15th March, 2020 till further orders. Thereafter on 8th March, 2021 it was noticed that the country is returning to normalcy and since all the Courts and Tribunals have started functioning either physically or by virtual mode, extension of limitation was regulated and brought to an end. The suo motu proceedings were, thus, disposed of issuing the following directions: 3 "1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021. 2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period sha....
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....nd (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. We have passed this order in exercise of our powers under Article 142 read with Article 141 of the Constitution of India. Hence it shall be a binding order within the meaning of Article 141 on all Courts/Tribunals and Authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in 6 weeks. List the Miscellaneous Application on 19th July, 2021." 15. Thereafter, the Supreme Court Advocate on record filed M.A. No. 21 of 2022 in MA No. 665 of 2021 in which the following order was passed: - "1. In March, 2020, this Court took Suo Motu cognizance of the difficulties that might be faced by the litigants in filing petitions/ applications/suits/ appeals/ all other quasi proceedings within the period of limitation prescribed under the general law of limi....
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.... under any general or special laws in respect of all judicial or quasi- judicial proceedings. II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply. IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings. 6. As prayed for by learned S....
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.... this Tribunal about the demise of Respondent No. 1 on 12.07.2021 and at that time still 13 days were available with the Appellant to file the application within the period of 90 days. It is further submitted that even the period of limitation had started, for the sake of argument from 12.07.2021 when the Appellant came to know about the death of the Respondent No. 1, the application should have been filed up to 12.10.2021 but no effort was made by the Appellant rather the application for seeking details of LRs was filed on 29.11.2021, after about four and half months. It is further submitted that there is delay on the part of the Appellant at every stage and as such the application filed by the Appellant is much beyond the period of limitation without assigning any sufficient cause is liable to be dismissed. 18. We have heard Counsel for the parties in regard to the application for condonation of delay. 19. There is no dispute to the facts that Respondent No. 1 had expired on 26.04.2021. Counsel for Respondent No. 1 brought it to the notice to this Tribunal as well as the Appellant on 12.07.2021. The Application i.e. I.A. No. 2693 of 2021 was filed on 29.11.2021. The said applic....
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....1. The said application was ultimately decided on 24.08.2022 by this Tribunal and the information was given by Counsel for Respondent No. 1 to the Appellant on 08.09.2022 and thereafter, the application was filed on 12.09.2022. In the integrum, because of order of the Hon'ble Apex Court, reproduced hereinabove, in Suo Motu Writ Petition No. 3 of 2020 the period from 15.03.2020 to 28.02.2022 was excluded with further grace period of 90 days. In that manner, the limitation provided under Article 120 of the Limitation Act, 1963 became non-operative and can be stated to have again started from 28.05.2022 but during this period application i.e. I.A. No. 2693 of 2021 filed by the Appellant on 29.11.2021 for seeking the details of the LRs of Respondent No. 1 was pending which ultimately decided on 24.08.2022 without there being any fault on the part of the Appellant and as soon as when the particulars were provided by Counsel for Respondent No. 1 to the Appellant on 08.09.2022 through email the necessary application i.e. I.A. No. 3473 of 2022 was filed within four days. 22. Thus, in view of the aforesaid facts and circumstances, we do not find any delay in filing of the application and a....