TaxTMI 
TaxTMI 
2025 (7) TMI 572
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....ng of the appeal. 2. The prayers in the applications are as follows: "a) Condone the delay of 14 days in filing the present Appeal against the impugned order dated 07.01.2025 passed by the National Company Law Tribunal, Kolkata Bench (Court-II) in LA. (IB) (Plan) No. 21/KB/2024 in Company Petition (IB) No. 26/KB/2023: b. Without prejudice condone the delay of 62 days in filing the present Appeal from the date of the Impugned Order dated 07.01.2025 as directed to be added in the Prayer clause by the Registry. c. Pass any such order this Hon'ble Court may deem fit and Proper." 3. The appeal has been filed by the appellant under Section 61 of the Insolvency and Bankruptcy Code, 2016, (for short the 'Code' or the 'IBC'), challenging the order dated 07.01.2025 passed by the adjudicating authority (National Company Law Tribunal, Division Bench, Court - II, Kolkata) in I.A. IB Plan No.21/2024 in C.P. (IB) No.26/KB/2023. By the impugned order, adjudicating authority has allowed the I.A. IB Plan 21/2024 filed by the Resolution Professional (RP) praying for approval of the resolution plan of the corporate debtor, Varutha Developers Private Limited. The Di....
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....ge, i.e., 25.02.2023. 30 days period shall come to an end on 27.03.2025 and the appeal having filed on 09.04.2025, there is delay of only 14 days which is within condonable period and there being sufficient cause, the said delay be condoned. Alternative prayers have been made in the application as noticed above. 6. Learned counsel for the respondent refuting the submissions of the appellant submits that the computation of limitation for filing the appeal shall commence from date of pronouncement, i.e., from 07.01.2025 and limitation is not dependent on the knowledge of the appellant. It is submitted that the appeal has been filed beyond condonable period i.e., 30 days + 15 days. It is submitted that the present appeal has been filed on 93rd day i.e., delay of 48 days which is well beyond 45 days outer limit and is not condonable. It is submitted that limitation of filing the appeal commences on the date of announcement and is not dependent on the knowledge of the appellant. 7. Learned counsel for the parties have placed reliance on the various judgements of this Tribunal and Hon'ble Supreme Court in support of their respective submissions, which shall be noticed hereinafter. ....
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....ppellant is 'Anmol Tekriwal' Vs. 'M.N. Auxichen & Anr., reported in [2019 SCC OnLine NCLAT 63], wherein paragraphs 5 & 9, following has been held : "5. It has not been disputed that the Appellant came to know of the impugned order when the 'Operational Creditor' forwarded the impugned order. The certified copy has not been forwarded. The appeal was thereafter filed on 13th September, 2018 and thereby delay of about 6 days in preferring the appeal. Taking into consideration the stand taken by the parties and being satisfied with the grounds, we condone the delay of 6 days in preferring the appeal. 9. This apart, there is nothing on the record to suggest that the copy of the impugned order was forwarded to the Appellant by the Adjudicating Authority or by the 'Resolution Professional'. Even if it is accepted that certified copy is not sent to all the shareholders, but the date of knowledge is to be taken into consideration counting the period of limitation. It is not disputed by the 'Operational Creditor' that he forwarded the copy of the impugned order to the Appellant and therefore, we have accepted the period of the date of knowledge as pleaded by the Appellant, ....
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.... concerned with the limitation prescribed by Section 61 of the IBC which fell for consideration of this Court in Kalpraj Dharamshi (supra). In the said judgment, it was categorically held by this Court that an appeal against the order of NCLT shall be preferred within a period of 30 days from the date on which the order was passed by the NCLT. The Appellate Tribunal has the power to extend the period of limitation by another 15 days. In view of the aforesaid judgment, we are of the considered view that the Appellate Tribunal committed an error in issuing notice in an appeal that was filed by Respondent No.1 with delay of 388 days. The appeal is, accordingly, allowed. Pending application(s), if any, shall stand disposed of." 16. Learned counsel for the respondent has also relied on the judgement of the Hon'ble Supreme Court in 'Sanjay Pandurang Kalate' Vs. 'Vistara ITCL (India) Ltd. & Ors., reported in [(2024) 3 SCC 27], wherein paragraph 16, Hon'ble Supreme Court held that limitation for filing an appeal under Section 61 of the IBC commences from the date of pronouncement of the judgement. In paragraph 16, following was held: "16. From the above discussion o....
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.... along with the additional condonable period of 15 days as provided under section 61(2) IBC; and (ii) If not, whether the NCLAT has the power to condone the delay beyond the said prescribed and condonable period under the IBC." 18. While considering Issue No. 1, the facts have been noticed in paragraph 9, which are as follows: "9. In the present case, Respondent No. 1 e-filed appeal along with an application for condonation of delay before the NCLAT on 23.05.2022 and physically filed the same on 24.05.2022. The NCLAT allowed the application for condonation of delay by the order impugned herein. The appellant challenged the maintainability of the appeal on the ground that it was filed beyond the 45-day period prescribed under section 61(2) IBC - comprising a 30-day limitation period and a further 15-day condonable period - and was, therefore, time-barred. Whereas, according to Respondent No.1, although the resolution plan was approved by the NCLT on 07.04.2022, the intimation of the said approval was given to the listing departments of the BSE and NSE only on 08.04.2022; and he became aware of the approval on that date, as he was not a party to the petition file....
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....ng the right of an aggrieved party to file an appeal before NCLAT along within the stipulated period of limitation. The notable difference between Section 421(3) of the Companies Act and Section 61(2) IBC is in the absence of the words "from the date on which a copy of the order of the Tribunal is made available to the person aggrieved" in the latter. The absence of these words cannot be construed as a mere omission which can be supplemented with a right to a free copy under Section 420(3) of the Companies Act read with Rule 50 of the NCLT Rules for the purposes of reckoning limitation. This would ignore the context of IBC's provisions and the purpose of the legislation. 31. ...A Person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the "time requisite" for obtaining a copy is to be excluded. However, the time taken by the court to prepare the decree or order before an application for a copy is made cannot be excluded. If no application for a certified copy has been made, no exclusion can ensue. In fact, the Explanation to the provision is a clear indicator of the legal position t....
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....nst. It is not open to a person aggrieved by an order under IBC to await the receipt of a free certified copy under Section 420(3) of the Companies Act, 2013 read with Rule 50 of the NCLT Rules and prevent limitation from running. Accepting such a construction will upset the timely framework of 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. 34. On the second question, Rule 22(2) of the NCLAT Rules mandates the certified copy being annexed to an appeal, which continues to bind litigants under IBC. While it is true that the tribunals, and even this Court, may choose to exempt parties from compliance with this procedural requirement in the interest of substantial justice, as reiterated in Rule 14 of the NCLAT Rules, the discretionary waiver does not act as an automatic exception where litigants make no efforts to pursue a timely resolution of their grievance. The appellant having failed to apply fo....
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....eal was filed beyond 45 days prescribed under Section 61(2) of the IBC. Answering Issue No. 1, following was held in paragraph 10.4: "10.4. In the present case, Respondent No. 1 was neither a party to the proceedings before the NCLT nor privy to the CoC deliberations, and became aware of the order only upon its subsequent disclosure. However, it is evident that the Company Secretary of the Corporate Debtor duly informed the listing departments of both NSE and BSE about the NCLT order dated 07.04.2022 within 30 minutes of its pronouncement. Hence, the limitation period for filing the appeal commenced on 07.04.2022 and expired on 07.05.2022. Notably, 07.05.2022 fell on the first Saturday of the month, which is a working day for the Registry of the NCLAT. Even otherwise, the benefit of section 4 of the Limitation Act, 1963 cannot be granted, as Respondent No. 1 filed the appeal beyond not only the prescribed period of 30 days but also the condonable period of 15 days, i.e., on 24.05.2022. In view of the same reason, Rule 3 of the NCLAT Rules, 2016 has also no application to the facts of the present case. Thus, applying the principles laid down in the decisions referred to abo....