TaxTMI 
TaxTMI 
2024 (10) TMI 905
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....ppellant to the Company Appeal, has preferred this Appeal, being aggrieved as against the Impugned Order of 31.01.2020, as it has been passed in IA/69/2020, rendered in CP(IB)/499/7/HDB/2018. 3. As a consequence of the Impugned Order, the revised final Resolution Plan dated 04.01.2020, as it stood submitted by M/s. SVSS Commercial Pvt. Ltd., was approved by the Members of the Committee of Creditors, having 100% voting Shares, as per the provisions contained under Section 31 (1) of the Code. It is this Order of Approval of Resolution Plan, which has been subject to challenge, in this Appeal. 4. When initially the Company Appeal was preferred by filing the same, before the Registry of this Tribunal on 28.05.2021, it was not accompanied with any Condone Delay Application, despite being an Appeal under Section 61 of I & B Code, 2016 and since the challenge was to the Impugned Order of 31.01.2020, it was apparently much beyond the period prescribed under Sec. 61 to be read with Sub Section 2, and even its proviso. 5. When later on, the Appeal was taken up to be argued on merits, after the exchange of pleadings and furnishing of Notes of Submissions, it is then only, at that sta....
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....t of the Hon'ble Apex Court rendered in a Suo Motu proceedings in Miscellaneous Application No. 21 / 2022 in MA No. 665 / 2021 in Suo Motu Writ Petition No. 3 / 2020, owing to the Covid-19 situation, he pleads that he would be entitled for the extension of the period of limitation contemplated under the proviso to Sub Section 2 of Section 61, for the purposes of the determination of the period of limitation as the same would have to be construed on the basis of the ratio propounded by the Hon'ble Apex Court and accordingly, the date of filing the Appeal would be falling within the upper time limit provided by the Hon'ble Apex Court in the aforesaid Judgment of Suo Motu Writ (C) No. 3 / 2020, as it has been provided under Para 5 for the relaxation of the limitation period, due to unforeseen circumstances because of Covid-19 situation. 10. The Hon'ble Apex Court in Para 5 of the said Judgment has provided that the period of limitation of all the proceedings either under the general law or under special laws, would stand extended with effect from 15.03.2020 to 28.02.2022. 11. The relevant observation, as it has been made in Para 3 of the Judgment in Suo Motu Writ (C) No. 3 / 202....
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....t or tribunal can condone delay) and termination of proceedings." 13. From that perspective, the learned Counsel for the Appellant had submitted that, since though the Impugned Order was passed on 31.01.2020, and the Appeal was preferred on 28.05.2021, but still, it would be falling well within the cut off period of limitation prescribed by the Hon'ble Apex Court, as per Para 5 of the Judgment extracted above, which started running from 15.03.2020, because, since in the instant Appeal, the 45 days period would be expiring on 16.03.2020 which falls within the period from 15.03.2020 to 28.02.2022, as per Para 3 of the Judgment cited above and hence, he would be entitled to get the benefit of the Hon'ble Apex Court Judgment. 14. In elaboration of his argument, he has submitted that, the issue with regards to further extension of the extended period, as it stood provided under the proviso to Sub Section 2 of Section 61, on account of Covid-19 pandemic, an issue which has been dealt with by the Hon'ble Apex Court in the matters of `Sagufa Ahmed'. He has contended that in the said Judgment of Sagufa Ahmed & Ors. Vs. Upper Assam Plywood Products Pvt. Ltd. & Ors., as decided on 18.09....
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....eenth day of January, 1887." 21. 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". 22. In Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. Ltd. [Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. Ltd., (2012) 2 SCC 624 : (2012) 1 SCC (Civ) 831] , this Court dealt with the meaning of the words "prescribed period" in paras 13 and 14 as follows : (SCC pp. 627-28) "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 provisions of this Act." Section 2(j) of the 1963 Act when read in the context of Section 34....
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.... proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State). By an order dated 27.03.2020 this Court extended the period of limitation prescribed under the general law or special laws whether compoundable or not with effect from 15.03.2020 till further orders. The order dated 15.03.2020 was extended from time to time. Though, we have not seen the end of the pandemic, there is considerable improvement. The lockdown has been lifted and the country is returning to normalcy. Almost all the Courts and Tribunals are functioning either physically or by virtual mode. We are of the opinion that the order dated 15.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end. 2. We have considered the suggestions of the learned Attorney General for India regarding the future course of action. We deem it appropriate to issue the following directions: - 2.1 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. Conseque....
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....racted, and rationally construed. 18. The Hon'ble Apex Court in the matters of V. Nagarajan (Supra), while dealing with the implications of Rule 22 (2) of the NCLAT Rules, 2016, dealt with the aspect of the presentation of Appeal in the context of the provisions contained under Rule 22. In Para 29 of the said Judgment, the Hon'ble Apex Court has observed that the parties cannot be automatically dispensed with from their obligation to apply for and obtain a Certified Copy of the Judgment for the purposes of filing an Appeal and the ultimate conclusion which has been arrived at is that as contained in Para Nos. 29 & 31 of the said Judgment as under: "29. On the question of a certified copy for filing an appeal against an order passed by NCLT under IBC, Rule 22(2) of the NCLAT Rules mandates that an appeal has to be filed with a certified copy of the "impugned order". "22. Presentation of appeal.-(1) Every appeal shall be presented in Form NCLAT-1 in triplicate by the appellant or petitioner or applicant or respondent, as the case may be, in person or by his duly authorised representative duly appointed in this behalf in the prescribed form with stipulated fee at ....
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....to dispense with compliance and render Rule 22(2) of the NCLAT Rules nugatory. The act of filing an application for a certified copy is not just a technical requirement for computation of limitation but also an indication of the diligence of the aggrieved party in pursuing the litigation in a timely fashion. In a similar factual scenario, Nclat had dismissed an appeal [Prowess International (P) Ltd. v. Action Ispat & Power (P) Ltd., 2018 SCC OnLine NCLAT 644] as time-barred under Section 61(2) IBC since the appellant therein was present in court, and yet chose to file for a certified copy after five months of the pronouncement of the order." 19. To answer the argument raised in Para 29 of the Judgment of V. Nagarajan (Supra), the learned Counsel for the Respondent who had filed his objection to the Condonation Delay Application on 08.11.2022, has submitted therein that the ratio of Sagufa Ahmed or that of the Suo Motu Writ Petition decided by the Hon'ble Apex Court, extending the period of Limitation from 15.03.2020 till 28.02.2022, would not be attracted in the instant Appeal as it has been sought for, because the Appellant has filed the Appeal, only on 28.05.2021, though well ....
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.... period of limitation and since the Application for procuring the Certified Copy of the Judgment was only preferred on 30.04.2021, he will not be entitled to get the benefit of limitation even in the light of the Judgment of V. Nagarajan's case as envisaged in Para 29, as well as the Judgment of the Principal Bench which lays down that the benefit of extended period of limitation under the proviso to Sub Section 2 of Section 61, would only be made available to the party who is diligent to the proceedings, subject to the condition that the Application for obtaining the Certified Copy was made well before expiry of the period of 30 days from the date of the Judgment, which in the instant case would be on 01.03.2020. Thus, he contends that as the copy was not applied for, between the period from 30.01.2020 to 01.03.2020, since, being the period falling much prior to the cut off period i.e. 15.03.2020, as per the Suo Motu Judgment, the benefit of extended period of limitation will not be made available to the Appellant. (iii) He further submits that the Appellant would not be entitled for taking the benefit under the plea that, he was not a party to the proceedings, because of....
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....2: "Party" means a person who prefers an appeal or application or petition before the Tribunal and includes respondent or any person interested in the said appeal or application or petition including the Registrar of Companies or the Regional Director or Central Government or State Government or official liquidator and any person who has a right under the Act, or the Reserve Bank of India Act 1934 (2 of 1934) to make suggestions or submissions or objections or reply;" 24. If the said definition of the word "party" under the NCLT Rules, 2016, is taken into consideration, it is quite wide and it does not stipulate that a person for the purposes of being treated as to be a `party', has to be actually the party to the proceedings. Rather, the term party as defined under Sub Rule (16) of Rule 2 of the NCLT Rules of 2016, is wide enough to include within itself a person who prefers an Appeal. Particularly, when the definition itself uses the word "Person who prefers the Appeal", it will also logically include the Appellant himself, because the Appellant has preferred an Appeal on 28.05.2021 under Section 61 of the I & B Code, 2016, and hence, the attempt made, to carve out an....
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....eved", under Section 61, and that the legislature consciously does not uses the word "Party to the proceedings", who can prefer an Appeal". Because of the use of word "Person Aggrieved" under Sec. 61, it is wide enough to include within it, any person other, than the original parties to the Appeal, who is aggrieved by the Judgment under Appeal. 28. In that eventuality, the interpretation given to the proviso to Sub Section 2 of Section 61, as given and dealt in Para 29 of V. Nagarajan's Judgment (Supra), would be applicable in the instant case and the Appellant for the purposes of the Appeal would treated as to be a "Person Aggrieved", even though he might not have been a party to the proceedings. Thus, the necessity to apply for the Certified Copy within 30 days of Limitation will bind the Appellant too, as law carves out no exception as such for the words "Person Aggrieved", which is a provision which has to be read as a whole. 29. Much argument had been extended by the learned Counsel for the Appellant as to how the word "party", as mentioned in Para 29 of the Judgment of V. Nagarajan, has to be read in the context of the Appellate provision contained under Sec. 61 of the ....
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....tion proceedings, asked that the respondent should account for mesne profits during the time for which he had been unlawfully in possession under a decree which had been set aside. The application was dismissed by the court below on the ground that it was time-barred by article 181 of the Limitation Act, and, secondly, on the ground that the respondent was not a party to the decree which gave rise to the application. A further point was raised under order II, rule 2, of the Code of Civil Procedure which obviously has no substance. The case has been extremely well argued on both sides before us and a great number of authorities have been cited on this vexed question. It is not desirable to add more than one is obliged to the tangle which appears to exist with regard to the method of reconciling proceedings under section 144 with other provisions of the law. It so happens that in the case before us the point whittles itself down to a comparatively narrow compass. We agree with the decision of this Court in the case of Jiwa Ram v. Nand Ram [ (1922) Supra p. 407. ] that proceedings under section 144 of the Code are not execution proceedings, although they are, of course, in the nature ....
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....urt to deal with on the merits. The applicants will have the costs of this appeal. Costs in the court below will abide the result." While on the contrary, a "person aggrieved", if it is visualised from the perspective of the language used in the Appellate provision, broadly speaking, means a "party" or a "person", who though, not being a party to the proceedings is a person who is aggrieved by a decision / judgment which affects / has the potential to affect his personal rights. 33. The expression "person aggrieved" will have to be interpreted with reference to the purpose and the provisions of the Statute. One interpretation is that a "person" will be held to be aggrieved by a decision, if that decision is materially adverse to him or materially effects his or her rights. The said interpretation of the "person aggrieved" was dealt with by the Hon'ble Apex Court in the Judgment reported in 1975 (2) SCC 702 Bar Council of Maharashtra Vs. M.V. Dabholkar and the aforesaid expression has been dealt in Paras 27 & 28 of the said Judgment, which is extracted hereunder:- "27. The words "person aggrieved" are found in several statutes. The meaning of the words "person aggriev....
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....n 1997 (4) SCC 452, Northern Plastics Limited V. Hindustan Photo Films Manufactures Limited. The relevant Para 10 is extracted hereunder: "10. We have, therefore, to turn to the scheme of the Act providing for appeals. The provision for appeals is found in Chapter XV of the Act. Section 128 deals with "Appeals to Collector (Appeals)" and Section 128-A deals with "Procedure in appeal". The Appellate Tribunal is constituted as per Section 129 of the Act. Sub-section (1) thereof lays down that "the Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Gold (Control) Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act". It is, therefore, obvious that the Appellate Tribunal CEGAT is a creature of statute and derives its jurisdiction and powers only from the statute creating it and not outside the same. Then follows Section 129-A dealing with "Appeals to the Appellate Tribunal". The relevant provisions thereof read as under: "129-A. Appeals to the Appellate Tribunal.-(1) Any person aggrieved by a....
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....or otherwise, call for and examine the record of any proceeding in which a Collector of Customs had passed any decision or order not being a decision or order passed under sub-section (2) of this section of the nature referred to in sub-section (5) of Section 129-D for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit." Similarly Section 129-DD gives powers of revision to the Central Government to entertain revision petitions against certain orders of the Collector (Appeals). It provides as under: "129-DD. Revision by Central Government.-(1) The Central Government may, on the application of a person aggrieved by any order passed under Section 128-A, where the order is of the nature referred to in the first proviso to sub-section (1) of Section 129-A, annul or modify such order. Explanation.-For the purposes of this sub-section, 'order passed under Section 128-A' includes an order passed under that section before the commencement of Section 40 of the Finance Act, 1984, against which an appeal had not been preferred before such commencement and could have ....
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....prefer statutory appeal to the Appellate Tribunal. Neither the Central Government, through the Industries Department, nor the rival company or industry operating in the same field as the importer can as a matter of right prefer an appeal as "person aggrieved". It is true that the phrase "person aggrieved" is wider than the phrase "party aggrieved". But in the entire context of the statutory scheme especially sub-section (3) of Section 129-A it has to be held that only the parties to the proceedings before the adjudicating authority-Collector of Customs could prefer such an appeal to the CEGAT and the adjudicating authority under Section 122 can prefer such an appeal only when directed by the Board under Section 129-D(1) and not otherwise. It is easy to visualise that even a third party may get legitimately aggrieved by the order of the Collector of Customs being the adjudicating authority if it is contended by such a third party that the goods imported really belonged to it and not to the purported importer or that he had financed the same and, therefore, in substance he was interested in the goods and consequently the release order in favour of the purported importer was prone to ....
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....not a party to a litigation has no right to appeal merely because the judgment or order contains some adverse remarks against him. But it has been held in a number of cases that a person who is not a party to a suit may prefer an appeal with the leave of the appellate court and such leave would not be refused where the judgement would be binding on him under Explanation 6 to Section 11 of the Code of Civil Procedure. We find ourselves unable to take the view that because a person has been given notice of some proceedings wherein he is given a right to appear and make his submissions, he should without more have a right of appeal from an order rejecting his contentions or submissions. An appeal is a creature of statute and if a statute expressly gives a person a right to appeal, the matter rests there. Innumerable statutes both in England and in India give the right of appeal to 'a person aggrieved' by an order made and the provisions of such statutes have to be construed in each case to find out whether the person preferring an appeal falls within that expression. As was observed in Robinson v. Currey [(1881) 7 QBD 465 : (1881-85) All ER Rep Ext 1770] the words 'person agg....
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.... 41. This Court in G. Narasimhan case [(1972) 2 SCC 680 : 1972 SCC (Cri) 777 : AIR 1972 SC 2609] further noted that the news item in question did not mention any individual person nor did it contain any defamatory imputation against any individual. Accordingly, it was held that the complainant was not a "person aggrieved" within the meaning of Section 198 CrPC, 1898. The Court also took note of Explanation 2 to Section 499 IPC which contemplates defamation of "a company or an association or any collection of persons as such". Undoubtedly, the Explanation is wide but in order to demonstrate the offence of defamation, such a collection of persons must be an identifiable body so that it is possible to say with precision that a group of particular persons, as distinguished from the rest of the community stood defamed. In case the identity of the collection of persons is not established so as to be relatable to the defamatory words or imputations, the complaint is not maintainable. In case a class is mentioned, if such a class is indefinite, the complaint cannot be entertained. Furthermore, if it is not possible to ascertain the composition of such a class, the criminal prosecution ca....
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....wo or more financial creditors as part of a consortium or agreement, each such financial creditor shall be part of the committee of creditors and their voting share shall be determined on the basis of the financial debts owed to them. (4) Where any person is a financial creditor as well as an operational creditor,- (a) such person shall be a financial creditor to the extent of the financial debt owed by the corporate debtor, and shall be included in the committee of creditors, with voting share proportionate to the extent of financial debts owed to such creditor; (b) such person shall be considered to be an operational creditor to the extent of the operational debt owed by the corporate debtor to such creditor. (5) Where an operational creditor has assigned or legally transferred any operational debt to a financial creditor, the assignee or transferee shall be considered as an operational creditor to the extent of such assignment or legal transfer. (6) Where the terms of the financial debt extended as part of a consortium arrangement or syndicated facility provide for a single trustee or agent to act for all financial creditors, each fin....
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.... Code, all decisions of the committee of creditors shall be taken by a vote of not less than fifty-one per cent. of voting share of the financial creditors: Provided that where a corporate debtor does not have any financial creditors, the committee of creditors shall be constituted and shall comprise of such persons to exercise such functions in such manner as may be specified.] (9) The committee of creditors shall have the right to require the resolution professional to furnish any financial information in relation to the corporate debtor at any time during the corporate insolvency resolution process. (10) The resolution professional shall make available any financial information so required by the committee of creditors under sub-section (9) within a period of seven days of such requisition." He submits that since the Appellant, not being a Financial Creditor would not be forming part of the Committee of Creditors, as provided under Sub Section 2 of Section 21, he cannot be attributed with the knowledge of the proceedings and further, he cannot be treated as to be a "party" to the proceedings though, he may be a "person aggrieved". By this argument a....
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....ate of inception of the CIRP proceedings, these communications were being made on or from the email address of the Appellant, there would be a deeming knowledge of the proceedings with the Appellant and in that eventuality, when the Appellant had the knowledge and when despite of having the knowledge, he had not procured the Certified Copy of the Judgment, within the limitation period, which was apparently expiring prior to the expansion of the limitation as granted by the Hon'ble Apex Court's Judgment, the Appellant would not be entitled for any benefit from the Judgment of the Suo Motu proceeding, because, possession of knowledge itself would be sufficient to determine the limitation period for the purposes of procurement of the Certified Copy of the Judgment which was necessitated for enabling to prefer an Appeal as per provisions under Sec. 61 of the Code. 40. The aspect of alleged lack of knowledge, which is being pleaded to derive the benefit of limitation, was an aspect considered by the Judgment of the Principal Bench of NCLAT, where the Principal Bench has observed that the knowledge of Judgment is an immaterial factor, because if that distorted interpretation is given ....
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.... the Order. 23. The mere fact that Appellants claim that they were not aware of the process of CIRP nor they could file any claim in the CIRP cannot be a ground to permit the condonation of delay which is beyond condonable period. Ignorance of entire CIRP Process cannot be a ground to condone." The necessity for applying for a Certified Copy of the Judgment and the intention of the legislature for procuring a copy within the prescribed period of limitation was an aspect which was dealt with by the Principal Bench of the NCLAT in the matters of Innovators Cleantech Private Limited V. Pasari Multi Projects Private Limited. The Principal Bench in Paras 27 & 29 of aforesaid Judgment of Innovators Cleantech Pvt. Ltd. (Supra), has observed that Rule 22 Sub Rule 2 of NCLAT Rules, 2016, stipulates for preferring an Appeal along with the Certified Copy of the Judgment and though powers have been given to the Tribunal to extend the time or waive the compliance of any Rule, framed under NCLAT Rules including grant of exemption from filing the Certified Copy of the Order, but still, filing of an application for a Certified Copy of the Order / Judgment is not just a technical req....
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....ough to apply for the Certified Copy within the time period of limitation under Section 61, as it has been observed in Para 29 of V. Nagarajan Judgment. 42. Admittedly, because the Appellant has not disputed the fact of email communications being made to him or generated from his email address during the course of the proceedings of CIRP, there will be a deeming presumption of knowledge and if the fact of knowledge is not denied by the Appellant by a specific pleading to that effect, in that eventuality he cannot be deriving the benefit of extension of limitation as a consequence of the Covid-19 situation, which according to the Judgment of the Hon'ble Apex Court commenced from 15.03.2020, and the ratio of the said Judgment cannot be extended to be made applicable in the instant Appeal to the Appellant, because the mandatory period of 30 days for applying for the Certified Copy of the Impugned Order of 31.01.2020 expired much before the short date of the extended period of limitation laid down by the Judgment of the Hon'ble Apex Court in the Suo Motu proceedings, due to Covid-19 situation, which was made effective with effect from 15.03.2020. 43. The aforesaid view is being t....
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....iod, will not grant the liberty to the Appellant to seek the benefit of limitation as prescribed under the Statute. 45. The aforesaid controversy has to be looked into from a different perspective also, because of the two emails which has been referred in the aforesaid paragraph which are generated from the email address of the Appellant. The Appellant's inaction to apply for the Certified Copy despite of having the knowledge of proceedings, would create a legal bar against him in the light of the provisions contained under Section 114 of the Evidence Act, because, the presumption which has been given therein will run against the Appellant and the knowledge would be deemed to be attributed to him, prior to the expiry of the period of limitation which is mandatory for the purposes of applying for the Certified Copy and thus, the entire action of the Appellant would be barred by an `Estoppel by Conduct'. Section 114 of the Evidence Act is extracted hereunder:- "Section 114- Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural event....
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....r preferring an Appeal, as it would create uncertainty in Resolution process and undermine the timelines prescribed in the Statute, thus striking at the very purpose and intention of the legislation. 46. From the aforesaid perspective and the reasons which have been given above; (a) Ultimately, we come to a conclusion that the Appeal preferred by the Appellant on 28.05.2021 would be barred by limitation. (b) The Appellant would not be entitled to take benefit of the Judgment of the Suo Motu Writ Petition of the Hon'ble Apex Court due to Covid-19 situation, for the reason being that the Appellant had knowledge of the proceedings, owing to the email communications placed already on record and since having knowledge, he ought to have satisfied the condition of applying for the Certified Copy of the Judgment within the time frame as prescribed under Section 61 of the Code, which has been mandated by the various ratios of the Principal Bench, as referred to above, as regards the principle that it is necessary for a "person aggrieved", in order to seek exclusion from the period of limitation, to apply for the Certified Copy for taking the benefit of limitation, ought....