TaxTMI 
TaxTMI 
2023 (1) TMI 1146
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....ed 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 26.10.2022 to 25.11.2022 Expiry of 30 days (excluding the date ....
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....ffice 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 period of limitation. 9. The Learned Counsel for the Petitioner / Appellant submits that, the 'Order' of this 'Tribunal' date....
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.... 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 1st Respondent, adverts to the relevant dates as under: Date Event 26.10.2022 Impugned order in IA No. 39 of 2022 in TCP (IB) No. 33/....
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....hority 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 the 1st Respondent, in the instant 'Appeal', was time barred on 10.12.2022 (on the 45th day) and it cannot be revived, by the 'withdrawal' of the earlier 'Order' of this 'Tribunal' dated 21.10.2022, by the 'Order' dated 24.1....
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....ined 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 Counsel for the 1st Respondent, refers to the Judgment of the Hon'ble Supreme Court of India, in T. Kaliamurthi & Anr. v. Five Gori Thaikal Wakf & Ors. (2008) 9 SCC 306 (vide Civil Appeal No. 4988 - 4991of 2000 dated 01.08.2008), wherein at Paragraphs 22 and 23, it is obse....
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....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 "prescribed period". What is the meaning of these words? 14. Section 2(j) of the 1963 Act defines "2(j) 'period of limitation' which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and 'prescribed period' means the period of limitation computed in accordance with the pr....
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...."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 principle of interpretation would justify such a result". 9. Recently, in the State of Maharashtra Vs. Hindustan Construction Company Limited2, a two Judge Bench of this Court speaking through one of us (R.M. Lodha, J.) emphasised the mandatory nature of the limit to the extension of the period provided in proviso to Section 34(3) and held that an application for setting aside arbitral aw....
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....n 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, 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 delay is only limited to 15 days under Section 61(2) proviso. There being delay of more than 15 days, the Delay Condonation Application c....
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....ibunal', 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 delay is only limited to 15 days under Section 61(2) proviso. There being delay of more than 15 days, the Delay Condonation Application cannot be allowed. Application is dismissed. Consequently, the Memo of Appeal is rejected." 11. Considering the fact that the instant Comp. App. (AT)(CH)(Ins) No.371/2022 was filed by the 'Appellant' before this 'Tribunal', on 09.09.2022 and this 'Tribunal', bearing in mind that the 'outer li....
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....ation' 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 'Nova Constitutio Futuris Formam Imponere Debet, Non Praeteritis' (C 2 C Int 392 C Doolubdass Pettamberdass & Ors. v. Ramloll Thackoorseydass & Ors. (1850) 5 MIA 109 PP 126, 127 (BARRON PARKE MR); K.S. Paripoornan v. State of Kerala 1994 JT 6 SC 182 at 213, 214. 41. As a logical corollary of general rule that, 'Retrospective Operation', is not taken to be meant, unless that intention is manifested by express words or by 'necessary implication'. Discussions: 42. Admittedly, in IA No....
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....fore, 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 'Appeal Papers', through e-filing and physical filing. 47. A mere running of the eye of the aforesaid Circular dated 21.10.2022 of this 'Tribunal', indicates that the Competent Authority', had issued the directions that; (1) The period of limitation shall be computed from the date of presentation of Appeal as per Rule 22 of the NCLAT Rules, 2016. (2) 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, 201....
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.... 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 superseded by the latter 'Order' dated 24.12.2022 of this 'Tribunal', sans merits, all the more, when the 'Order' dated 24.12.2022 of this 'Tribunal' (F. No. 23/4/2022 - Estt./NCLAT), is only 'Prospective' in 'Character' and it is neither 'Retroactive' nor 'Retrospective'. As such, the 'contra plea', taken on behalf of the 'Appellant', is 'unworthy of acceptance', and the same is negatived. 53. Dealing with the 'plea' of the 'Appellant', that the ingredients of Section 10 of the General Clauses Act, 1897, will apply, to the facts of the present case, because of the fact....