AI Drafter 
TaxTMI 
TaxTMI 
2023 (1) TMI 1146
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....ow of the 'impugned order' dated 26.10.2022, passed by the 'Adjudicating Authority', ('National Company Law Tribunal', Amaravati Bench), has preferred the instant Comp. App (AT) (CH) (INS) No. 13 of 2023, as an 'Aggrieved Person', seeking to 'condone the delay of 17 days' in preferring the instant 'Appeal'. 2. The 'Petitioner / Appellant', had applied for a certified copy of the 'impugned order' dated 26.10.2022 in IA (IBC) No. 39 of 2022 in TCP (IB) No. 33 / 7 / AMR /2019, and that the said copy, was made available to him, only on 24.11.2022. 3. Further, the limitation for filing an 'Appeal', had expired on 26.11.2022 and that in the 'Notes of Submissions', the 'Petitioner / Appellant', had mentioned that in IA No. 34 of 2023 in Comp. App (AT) (CH) (INS.) No. 13 of 2023, the 'delay was mistakenly mentioned as '17 days', instead of '14 days', and the 'mistake' was only an 'inadvertent error'. Appellant's Contentions: 4. The Learned Senior Counsel for the 'Petitioner / Appellant' submits that, the computation of 14 days in preferring the instant 'Appeal', as per the provisions of Section 61 (2) of the I & B Code, 2016, is shown as under: Period Days Provision ....
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....ed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the 6 Indian Limitation Act, 1877, applies." 7. It is the version of the 'Petitioner /Appellant' that the 'Appeal Paper Book', was uploaded in the 'Efiling Portal', on 09.12.2022, and that the expiry of 45 days, from the date of the 'impugned order' dated 26.10.2022 in IA(IBC) No. 39 of 2022 in TCP (IB) No. 33 / 7 / AMR / 2019, on the file of the 'Adjudicating Authority', ('National Company Law Tribunal', Amaravati Bench), would fall on 10.12.2022 (Saturday). 8. In this connection, the Learned Counsel for the 'Petitioner / Appellant', points out that as the period of Limitation, came to an end on 10.12.2022, ('Court' holiday), when the physical copies 'Appeal Paper Book(s)', were submitted on '12.12.2022', the 'next working day', is well within the perio....
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....t, takes a stand that the 'delay', if any, in submitting the physical copies of the 'Appeal Paper Book', was only, because of the Court Holiday on Saturday and Sunday (10.12.2022 and 11.12.2022 respectively), and the same is even otherwise is permitted under the 'Circular' F.No. 23/4/2022 - Estt. / NCLAT, dated 24.12.2022, regarding 'E-filing'. 1st Respondent's Pleas: 13. Conversely, the Learned Senior Counsel for the '1st Respondent / Liquidator', submits that, as the 'Petitioner / Appellant', has admitted that there as occasioned a delay of '17 days', in filing an 'Appeal', beyond a '15 days period', on this score, the instant Comp. App (AT) (CH) (INS.) No. 13 of 2023, is to be dismissed, as 'barred by Limitation'. 14. The Learned Counsel for the 1st Respondent, contends that, to escape from the consequences of the admitted fact of limitation, the Learned Counsel for the 'Appellant' (in oral argument), sought to set up an 'alternate argument', by mentioning that the 'delay is of 14 days only', since the case was 'e-filed' within '14 days', and the 15th day, being a 'Holiday', the case of physical filing, made on the 'next working day'. 15. The Learned Counsel for the ....
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.....10.2022 is hereby withdrawn and superseded by this order. (2) Limitation shall be computed from the date of e-filing. The hard copy has to be filed within 7 days of e-filing. However, the competent authority is at liberty to notify to extend the period of filing hard copy in case of any unforeseen exigency. In a case where hard copy is filed after 7 days, the appeal will be placed before this Tribunal for appropriate order. (3) The requirement of filing Appeals by electronic mode shall continue along with mandatory filing of the Appeals as per Rule 22 of the NCLAT Rules, 2016." 20. The Learned Counsel for the 1st Respondent points out that in terms of the 'Order' dated 21.10.2022 in F.No.37/2018 - Estt./NCLAT, it is evident that, the 'date of physical filing', alone is relevant for computing the 'aspect of Limitation'. 21. Expatiating submissions, the Learned Counsel for the 1st Respondent contends that it is settled 'Law' in cases, where the 'Appeal', is 'barred by Limitation', before the introduction of a 'Retrospective Amendment', such 'Time Barred Cases', cannot stand revived by a 'subsequent amendment', which enlarges 'Limitation'. 22. According to ....
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.... Learned Counsel for the 1st Respondent, adverts to Section 61 of the I & B Code, 2016, which proceeds to the following effect: "Section 61 : Appeals and Appellate Authority. *61. (1) Notwithstanding anything to the contrary contained under the Companies Act, 2013, any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days." 28. While concluding, the Learned Counsel for the 1st Respondent submits that the instant 'Appeal', is an after thought of non co-operation and the 'Application' under Section 35 (1) (n) of the Code, is only to 'derail' the 'Closure' of 'Liquidation Proceedings'. 1st Respondent's Citations: Hon'ble Supreme Court's Decisions: 29. The Learned Cou....
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....ection 2 of the Limitation Act, 1963, the expression is used throughout, only to denote the period of limitation. We may see a few examples: (i) Section 3(1) makes every proceeding filed after the prescribed period, liable to be dismissed, subject however to the provisions in Sections 4 to 24. (ii) Section 5 enables the admission of any appeal or application after the prescribed period. (iii) Section 6 uses the expression prescribed period in relation to proceedings to be initiated by persons under legal disability. 23. Therefore, the expression "prescribed period" appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be "prescribed period". 24. In Assam Urban Water Supply and Sewerage Board v. Subash Projects and Marketing Limited MANU/SC/0054/2012 : (2012) 2 SCC 624, this Court dealt with the meaning of the words "prescribed period" in paragraphs 13 and 14 as follows: "13. The crucial words in Section 4 of the 1963 Act are "p....
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.... sufficient cause being shown, the court may entertain the application for setting aside the award after the period of three months and within a further period of 30 days but not thereafter. 8. In Popular Construction Co. (supra), this Court has held that an application for setting aside an award filed beyond the period mentioned in Section 34(3) would not be an application "in accordance with sub-section (3) as required under Section 34(1) of the 1996 Act" and Section 5 of the 1963 Act has no application to such application. In para 12 of the report, it was held in Popular Construction Co. (supra) thus:- "12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are "but not thereafter" used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of the Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not thereafter" wholly otiose. No ....
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....g 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." "25. The law on limitation with respect to the IBC is settled and emphatic in its denunciation of delays. The power to condone delay is tightly circumscribed and conditional upon showing sufficient cause, even within the period of delay which is capable of being condoned. The IBC is a watershed legislation which seeks to overhaul the previous bankruptcy regime which was afflicted by delays and indefinite legal proceedings. IBC sought to structure and streamline the entire process of insolvency, right from the initiation of insolvency to liquidation, as a one-stop mechanism." Appellate Tribunal's Decisions: 33. The Learned Counsel for the 1st Respondent, refers to the Judgment of this 'Tribunal', in Exide Industries Ltd. v. Jitender Kumar Jain, Resolution Professional of Morakhia Copper & Alloys Pvt. Ltd. (vide Company Appeal (AT) (Insolvency) No. 1169 of 2022, wherein, at Paragraph 6, it is observed as under: 6. "In view of the law laid down by the Hon'ble Supreme Court....
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....nning. 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." 10. At this juncture, this 'Tribunal', aptly points out the 'Order' passed by this 'Appellate Tribunal' (Three Member Bench) Principal Bench, New Delhi in the matter of 'Exide Industries Ltd. V. Jitender Kumar Jain, Resolution Professional of Morakhia Copper & Alloys Pvt. Ltd.' (vide Company Appeal (AT) (Insolvency) No.1169 of 2022), wherein at Paragraph No.6, it is observed as under:- "In view of the law laid down by the Hon'ble Supreme Court, the limitation for filing the Appeal begins when order was pronounced. The mere fact that Appellant received free certified copy of the Impugned Order on 27th July, 2022, the period of limitation shall not stop running after passing of the order/judgment. Our jurisdiction to condone the de....
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....ssed in to service, all that is required is that, there ought to be a 'period prescribed', and that period should 'lapse' / 'expire' on a 'holiday'. Also that, the operative play of Section 10 of the Act, 1897, cannot be turned down on an 'unsubstantial ground(s)'. Rule of Construction: 39. It is a cardinal principle of construction that, every 'Statute', is 'Prima Facie Prospective', unless, it is 'expressly' or by 'necessary implication', made to have a 'Retrospective Operation' in character. Also that, there is a 'Presumption of Prospectivity', enunciated in 'Legal Maxim', 'Nova Constitutio Futuris Formam Imponere Debet, Non Praeteritis', i.e., 'a new law ought to regulate, what is to follow, not the past and this 'Presumption' operates, unless shown to the contrary, by 'express provision', in the 'Statute' or is otherwise 'discernible by necessary implication', as per decision of the Hon'ble Supreme Court of India, in 'Monnet Ispat & Energy Ltd. v. Union of India & Ors. (2012) 11 SCC 1, Page 90. 40. Further, unless there are words in the 'Statute', sufficient to show the intention of 'Legislature', to affect the 'existing rights', it is deemed to be prospective only 'N....
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....apers of the instant 'Company Appeal', was made on 12.12.2022 (47th day - Monday). 45. In this connection, this 'Tribunal', points out that the outer limit for preferring an 'Appeal' (30 + 15 = 45 days). Although, on behalf of the Appellant, a plea is taken that 10.12.2022, was a second Saturday (Holiday) for this 'Appellate Tribunal', the physical copies of the 'Appeal Paper Book(s)', were furnished on 12.12.2022 (Monday), being the 'next working day' of this 'Appellate Tribunal', and therefore, the instant 'Appeal', is filed well within time. 46. Further that the 'Appellant', to fortify his stand, adverts to Section 10 of the General Clauses Act, 1897, and further, that the reliance is placed upon the 'Order' of this 'Tribunal' dated 24.12.2022 (vide F.No.23/4/2022 - Estt. / NCLAT), in and by which, the earlier 'Order' of this 'Tribunal' dated 21.10.2022 (F.No. 10/37/2018 / NCLAT), was withdrawn, by superseding the 'Order', of this 'Tribunal', is of the considered view that the 'Order' of this 'Tribunal' in F.No.10/37/2018 - NCLAT dated 21.10.2022, was in live force, not only on 09.12.2022 (Friday), but also on 12.12.2022 (Monday), when the 'Appellant', had filed his 'Appea....
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.... dated 21.10.2022, shall be 'calculated' from the presentation of the 'Appeal', in the instant case, the 'Appeal', having been presented by the 'Appellant', (submission of 'Appeal papers', through physical mode (on 12.12.2022), on the '47th day', which is beyond the '45 days' (30 + 15 days), clearly 'barred' by 'Limitation'. 51. Also that, the further 'delay of 2 days', after '45 days', is beyond a period of Limitation (30 + 15 days), which cannot be 'condoned', by this 'Appellate Tribunal', and in this regard, this 'Tribunal' has no 'power' to 'excuse' the same. 52. Besides the above, at the time of 'e-filing of Appeal Papers', before this 'Tribunal' on 09.12.2022, as well as at the time of 'physical filing of Appeal Papers on 12.12.2022', by the 'Appellant', the 'Order' of the 'Competent Authority' of this 'Tribunal' dated 21.10.2022 (vide F.No.10/37/2018 - NCLAT), was very much in force and subsisting. Therefore, placing of heavy reliance on the 'Order' of the 'Competent Authority' of this 'Tribunal' dated 24.12.2022 (vide F. No. 23/4/2022 - Estt./NCLAT), stating that the earlier 'Order' of this 'Tribunal' dated 21.10.2022 (vide F.No.10/37/2018-NCLAT) was withdrawn and sup....