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2022 (9) TMI 219 - AT - Insolvency and BankruptcyDefect in the appeal - defect in appeal is cured and the Appeal is refiled before the Appellate Tribunal beyond seven days - date of re-presentation of the Appeal shall be treated as a fresh Appeal or not - limitation prescribed for filing an Appeal before this Appellate Tribunal under Section 61 of Insolvency and Bankruptcy Code, 2016 or Section 421 of the Companies Act, 2013 - period under which a defect in the Appeal is to be cured and this Appellate Tribunal shall have no jurisdiction to condone the delay in refiling/re-presentation if it is beyond the limitation prescribed in Section 61 of the IBC or Section 421 of the Companies Act, 2013. HELD THAT:- The filing of appeal (presentation) and refiling (re-presentation) are two different concepts and have been separately dealt with in the Rules. Rule 22 deals with the presentation of the appeal whereas Rule 26 envisages the re-presentation of the appeal after removal of the defects notified to the Appellant. Section 61(2) of the Code provides that appeal under Section 61(1) shall be filed within 30 days before the NCLAT. The expression ‘filing’ as occurring in Section 61(2) is for filing of the appeal/presentation of the appeal. Hon’ble Supreme Court in INDIAN STATISTICAL INSTITUTE VERSUS M/S ASSOCIATED BUILDERS AND ORS. [1977 (12) TMI 142 - SUPREME COURT] laid down that condonation of delay as prescribed in an appeal is different from petition for excusing the delay in re-presentation. It is well accepted principle of statutory interpretation that if the meaning of words is plain effect must be given to it. The statute at best declare intent of Legislature. If the Legislature or Rule making Authority intended provision of limitation for re-presentation/refiling the same could have been done in unambiguous words - the limitation prescribed for filing an appeal under Section 61 and Section 421 of Companies Act cannot be imported while considering condonation of delay in refiling/ representation. The law laid down by this Tribunal in MR. JITENDRA VIRMANI VERSUS MRO-TEK REALTY LTD. & ORS. [2017 (5) TMI 1791 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, BANGLORE] and three Member Bench Judgment in ARUL MUTHU KUMAARA SAMY VERSUS REGISTRAR OF COMPANIES, CHENNAI [2020 (9) TMI 1268 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] that when the defects in appeal are cured after seven days and the same is refiled, it shall be treated as a fresh Appeal, does not lay down a correct law. The re-presentation of appeal after expiry of a period of 7 days or after extended period shall not be a fresh filing and shall only be refiling/representation. The limitation prescribed in filing an appeal under Section 61 of the Code or Section 421 of the Companies Act, 2013 shall not govern the period taken in an appeal for removal of the defects in refiling/re-presentation. Even if, there is a delay in refiling/re-presentation which is more than the period of limitation prescribed for filing an appeal under Section 61 of the Code and Section 421 of Companies Act, 2013, the same can be condoned on sufficient justification. Let the Appeals be listed for consideration of condonation of delay in refiling/re-presentation in accordance with law. List the Appeals on 01st September, 2022 - The reference is answered accordingly.
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