TaxTMI 
TaxTMI 
2023 (12) TMI 443
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....vene a meeting of the stakeholders consultation committee in the Corporate Debtor in furtherance to the request emails dated 19.04.2023 and 25.04.2023 to consider the agenda of replacement of the liquidator; and (b) pass such other orders as this Hon'ble Tribunal may deem fit and thus render justice' have been allowed and the following order has been passed:- "5.13. In the present case, it is seen that due to non-consensus between the Secured Financial Creditor, the Liquidation Process in respect of the Corporate Debtor could not move forward. Also, it is observed in the paragraphs supra that the Liquidator has been vacillating with the appointment of the Authorized Representative for the class of creditors. Hence, the Liquidation process of the Corporate Debtor could not move forward. The stalemate in the conduct of all the concerned is causing detriment to the Liquidation estate. The objective of the code is lost. There is waste of time of this Adjudicating Authority due to inter se discord. The Liquidator is not able to bring parties to consensus. 5.14. Thus, in view of the same, we are of the view that the Liquidator in respect of the Corporate Debtor is required to be cha....
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....and more over, the same is not contemplated under the Regulations. 3. Issue notice to the respondent, returnable on 16.10.2023. 4. List the matter on 16.10.2023." 4. Since, there was some error of omission in the aforesaid order dated 29.09.2023, therefore, further order was passed in which status quo was granted which read as under:- "On 29.09.2023, we had heard the present writ petition and passed an order. Mr.S.Ravi, learned Senior Counsel for the petitioner, submits that on 29.09.2023, while dictating the order the Court had passed an order of status quo. However, the same is not incorporated in the order. Mr.Mohanavel, P.A. to Hon'ble Judges, also confirms that status quo order was dictated and he had noted it down in the notes-book. However, the same was not transcribed while making the order. In the light of that, in the order dated 29.09.2023, the following words be added, "Status quo, as on today be maintained". List on 16.10.2023." 5. Thereafter, another order was passed on 16.10.2023 which read as under:- "At the request of Mr.N.L.Rajah, learned Senior Counsel, place the matter on 01.11.2023. The interim order passed earlier to continue....
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....nterim protection is continued for a period of seven days from today so as to enable the petitioner to take appropriate steps before the National Company Law Appellate Tribunal. 10. Considering the exigency in the matter, the National Company Law Appellate Tribunal may endeavour to decide the matter expeditiously. 11. There will be no order as to costs. Consequently, W.M.P.No.28065 of 2023 is closed." 7. The Hon'ble Madras High Court disposed of the aforesaid writ petition on the ground that the Appellant has an alternative efficacious remedy of appeal to which the Appellant was relegated to and the interim protection was granted for 7 days for filing the statutory appeal. 8. However, instead of filing the statutory appeal, the Appellant challenged the order dated 01.11.2023 of the Hon'ble Madras High Court by way of a Special Leave Petition (Civil) Diary No. 46342 of 2023, under Article 136 of the Constitution of India, in which the Appellant made the prayer to grant special leave to appeal against the final order dated 01.11.2023 passed by the Hon'ble Madras High Court in writ petition and also prayed for ad-interim exparte stay on the order dated 20.09.2023 passed by th....
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....llant is entitled to the benefit of Section 14 of the Act or not. Arguments were heard and order was reserved on 20.11.2023, which read as under:- "This appeal is directed against the order dated 20.09.2023, passed by the Adjudicating Authority (National Company Law Tribunal, Chennai). The Appeal has been filed after 53 days. The Appellant, under the caption 'Limitation' has averred that he has excluded the periods spent in pursuing the remedy against the impugned order before the Hon'ble High Court of Madras and the Hon'ble Apex Court, in terms of Section 14 of the Limitation Act, 1963 (in short 'Act') and thus the appeal is within the prescribed period of 30 days. This assertion has been hotly contested by the Respondent on various grounds alleging that the appeal is clearly barred by limitation and the appellant is not entitled to exclude the periods allegedly spent before the aforesaid two Hon'ble Courts, in terms of Section 14 of the Act. In view of the issue which has been contested, we have heard Counsel for the parties to decide as to whether the Appellant is justified in excluding the periods spent before the aforesaid two Hon'ble Courts, in terms of Section 14 of ....
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....ied without satisfying the Court that the proceedings initiated by the Appellant was with due diligence and bonafidly. It is further submitted that Section 61 of the Code confers a statutory right upon an aggrieved person to challenge the order of the Adjudicating Authority for which a period of 30 days for filing of such an appeal is prescribed and in case the period of 30 days expires, it opens a window of another 15 days during which the appeal may be filed but by assigning sufficient cause to the satisfaction of the Appellate Authority for the delay. The sufficient cause should be an explanation and not an excuse. It is submitted that the period of 15 days cannot be further extended in any manner by any court. It is further argued that if the period spent by the Appellant is not excluded then the appeal is clearly barred by limitation because it has been filed after 53 days whereas the total period provided is 30 + 15 i.e. 45 days. It is also submitted that the Appellant has not filed a formal application for seeking condonation of delay and himself condoned the delay while referring to the previous litigation in the memo of appeal under the heading of 'limitation' despite the ....
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....out jurisdiction. - (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has 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 a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of subsection (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where suc....
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....approached the High Court of Bombay with a grievance that NCLT had adopted a procedure which was against the principle of natural justice and specifically mentioned in the writ petition that though alternate remedy was available, it approached the High Court since the issue was regarding the functioning of the NCLT. In that case, it was found that proceedings before the High court was hotly contested and by an elaborate judgment, the High Court dismissed the writ petition and relegated the petitioner therein to the alternate remedy available in law. In this background, it was held that the Appellant therein was bonafidly persecuting the remedy before the High Court in good faith and due diligence. There is no quarrel with the aforesaid two decisions of the Hon'ble Supreme Court which were decided on its peculiar facts but in the present case the Appellant, being a liquidator, knew about the statutory appeal provided under Section 61 of the Code, which even could have been filed with exemption from filing the certified copy but the Appellant chose to file a writ petition before the Hon'ble Madras High Court in which though, it had been mentioned that there is an alternative remedy o....
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....ng in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of-(a) any application or proceeding by or against the corporate debtor or corporate person; (b) any claim made by or against the corporate debtor or corporate person, including claims by or against any of its subsidiaries situated in India; and (c) any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code." 19. In the present case, the Applicant/Respondent invoked not only Regulation 31A(6) of the Regulations but also Section 60(5) of the Code and made two prayers out of which prayer (b) is for passing an order as the Tribunal may deem fit. The Tribunal has recorded the reasons while disposing of the application which cannot be said to be an order having been passed without jurisdiction and the contention of the Appellant in this regard is totally incorrect. The order of the Adjudicating Authority may be, in the opinion of the Appellant, illegal but for that matter the Appellant has to prefer an appeal and not the writ petition and then a sp....