TMI Blog2022 (1) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... st) on 05.02.2021, his Appeal is within time. Whether the Appellant is entitled for the benefit of judgment of the Hon ble Supreme Court in Suo Moto Writ Petition No. 3 of 2020 [ 2020 (5) TMI 418 - SC ORDER ] ? - HELD THAT:- The present is a case where order was passed on 11.11.2019 and 30 days period expired on 10.12.2019. The order of Suo Motu Writ Petition was relied. The Hon ble Supreme Court in the aforesaid order directed for extension of limitation from 15.03.2020 due to the COVID-19 Pandemic. The limitation for filing the Appeal of the Appellant long expired much before 15.03.2020, hence, the benefit of order of the Hon ble Supreme Court dated 23.03.2020 in Suo Motu Writ Petition cannot be availed by the Appellant. Whether on account of Appellant prosecuting its claim which Writ Petition is still pending, the Appellant is entitled for the benefit of Section 14(2) of the Limitation Act, 1963 for presenting the present Appeal? - HELD THAT:- The benefit of Section 14(2) can be claimed of the period during which bonafide proceeding is prosecuted in a Court which due to defect of jurisdiction or other cause of a like nature, is unable to entertain it. The present is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to the tune of ₹ 23 Crores approx. and Respondent No.3 (Appellant before us) proposes to either file Review Petition before the NCLT or challenge the order dated 11.11.2019 before this Tribunal. The Bombay High Court noticing the above submission passed an order on 03.12.2019. 2. The Appellant applied for certified copy of the impugned judgment. Appellant was issued certified true copy (free of cost) on 05.02.2021 by the Registry of the NCLT, Mumbai Bench. After obtaining the copy of certified order on 05.02.2021, the present Appeal was filed on 17.06.2021 before this Tribunal. An Application under Section 5 of the Limitation Act, 1963 for condonation of delay has been filed by the Appellant. Notice was issued by this Tribunal on Respondent by order dated 30.07.2021. The Respondent appeared and filed their reply. 3. Learned Counsel appearing for the Respondent at the very outset submitted that this Appeal is barred by time and hence is liable to be rejected as barred by time without entering into the merits of the case. 4. Learned Counsel for the Appellant refuted the submission of the Learned Counsel for the Respondent and said that sufficient cause has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Learned Counsel for the parties and material on record, following issues arise for consideration in the present Appeal:- (i) Whether limitation for filing the Appeal for the Appellant against the order dated 11.11.2019 passed by the Adjudicating Authority shall commence only w.e.f. 05.02.2021 when he has been provided with certified copy of the judgment (free of cost)? (ii) Whether the Appellant is entitled for the benefit of judgment of the Hon ble Supreme Court in Suo Moto Writ Petition No. 3 of 2020? (iii) Whether on account of Appellant prosecuting its claim in Writ Petition No. 12386 of 2019 as Respondent No.3, which Writ Petition is still pending, the Appellant is entitled for the benefit of Section 14(2) of the Limitation Act, 1963 for presenting the present Appeal? ISSUE NO. (1):- 11. The submission of the Learned Counsel for the Appellant is that he is entitled to reckon the period of limitation for filing the present Appeal w.e.f. 05.02.2021 when he was provided certified copy (free of cost). Appellant in support of his submission has placed reliance on two judgments of this Tribunal i.e. Mahendra Trading Company and Ors. vs. Hindustan Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt held that when they had applied for certified copy of the judgment after 27 days of the pronouncement of the order they cannot fall back on Section 421(3) of the Companies Act, 2013 which requires providing free copy to the parties. Judgment of the Sagufa Ahmed came for consideration before the Hon ble Supreme Court in V. Nagarajan v. SKS Ispat and Power Ltd. Ors.- Civil Appeal No. 3327 of 2020 . Three judges Bench in V. Nagarajan s case has categorically held that limitation for filing an Appeal under Section 61 of the I B Code shall begin from the date of pronouncement of the judgment. A party cannot wait. It was also noticed that the scheme under Section 60 of the I B Code is little different from the scheme of limitation as provided under Sections 420 and 421 of the Companies Act, 2013. In paragraphs 20 and 21, following was laid down:- 20. The appellant had argued that the order of the NCLAT notes that the NCLT registry had objected to the appeal in regard to limitation, to which the appellant had filed a reply stating that the limitation period would begin from the date of the uploading of the order, which was 12 March 2020. The appellant submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given that the IBC is a Code in itself and has overriding effect. Sections 61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the order is made available to the aggrieved party , in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of the IBC, the aggrieved party is expected to exercise due diligence and apply for a certified copy upon pronouncement of the order it seeks to assail, in consonance with the requirements of Rule 22(2) of the NCLAT Rules. Section 12(2) of the Limitation Act allows for an exclusion of the time requisite for obtaining a copy of the decree or order appealed against. It is not open to a person aggrieved by an order under the 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 and prevent limitation from running. Accepting such a construction will upset the timely framework of the 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Hon ble Supreme Court dated 23.03.2020 in Suo Motu Writ Petition cannot be availed by the Appellant. ISSUE NO. (3):- 20. Now coming to Issue No. (iii) which is a claim of benefit of Section 14(2) by the Appellant, it is useful to refer to Section 14(2) which provides as follows:- 14. Exclusion of time of proceeding bona fide in Court without jurisdiction.- .(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 sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in Sesh Nath Singh and Ors. vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. Ors.- Civil Appeal No. 9198 of 2019 (decided on 22.03.2021) . In the above case, an Application was filed under Section 7 of the I B Code which was admitted by the Adjudicating Authority. In the above case, it was found that right to sue accrued on 31.03.2013 when the account of the Corporate Debtor was declared NPA. The Financial Creditor has initiated proceeding under Section 13(2) of the SARFAESI Act, 2002 by issuing a notice on 18.01.2014. The proceedings under Section 13(2) were stayed by the High Court by its order dated 24.07.2017 when it passed interim order. High Court was prima facie of the view that Financial Creditor being a Co-operative Bank, it could not invoke the provisions of the SARFAESI Act, 2002. In the above context, Section 14 of the Limitation Act, 1963 came for consideration before the Hon ble Supreme Court. The Hon ble Supreme Court held that benefit of proceedings under the SARFAESI Act, 2002 is to be given to the Financial Creditor under Section 14 since prima facie the proceedings before the SARFAESI Act, 2002 were suffering from defect of jurisdiction. In Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the IBC were initiated on 10th July 2018. 87. In our view, since the proceedings in the High Court were still pending on the date of filing of the application under Section 7 of the IBC in the NCLT, the entire period after the initiation of proceedings under the SARFAESI Act could be excluded. If the period from the date of institution of the proceedings under the SARFAESI Act till the date of filing of the application under Section 7 of the IBC in the NCLT is excluded, the application in the NCLT is well within the limitation of three years. Even if the period between the date of the notice under Section 13(2) and date of the interim order of the High Court staying the proceedings under the SARFAESI Act, on the prima facie ground of want of jurisdiction is excluded, the proceedings under Section 7 of IBC are still within limitation of three years. 24. The above judgment does not come to any aid of the Appellant since the benefit under Section 14(2) of the Limitation Act was given in the above case on the prima facie ground that SARFAESI proceedings is without jurisdiction and which proceedings were already stayed by the High Court by the interim order on the aforesaid g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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