TMI Blog2022 (11) TMI 296X X X X Extracts X X X X X X X X Extracts X X X X ..... nt cause for not filing the Appeal but such period shall not exceed 15 days. According to the Appellant 46th and 47th Day i.e. 30th and 31st July were holidays. For purposes of extending the benefit of Section 4 of the Limitation Act, the Limitation has to be expired on the date when Court is closed, present is not a case where the Limitation expired on a date when the Court was closed since limitation is of 30 days and not 45 days. The power to condone the delay of 15 days is exercised by this Tribunal under proviso to Section 61(2) of the Code but it cannot be said that period for limitation is 45 days. Thus the present is not a case where benefit of Section 4 can be extended. Section 14 of the Limitation Act in strict terms does not apply to the Appeal which is clear from the plain reading of Section 14 of the Limitation Act. The limitation act uses the expression Application , Suit and Appeal differently and the provisions in the schedule providing for limitation of Application, Suit and Appeal are all different - The law is thus well settled that even in cases where Section 14 is not strictly applicable, the principle underlying Section 14 can be invoked. From th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agraj (hereinafter referred to as The Adjudicating Authority ) in IA(IB) No. 79/ALD/2022 in CP(IB) No. 107/ALD/2019. By the Impugned Order, the Adjudicating Authority has allowed the I.A. No. 79/ALD/2022 filed by the Resolution Professional for approval of the Resolution Plan. There being delay in filing the Appeal, I.A. No. 3349 of 2022 has been filed by the Appellant seeking condonation of delay. 2. The Application I.A. No. 3349 of 2022 states that the present Appeal has been filed on 47th Day from the date of the Impugned Order. For condonation of delay, two principal submissions have been made by the Learned Counsel for the Appellant. 3. Learned Sr. Counsel-Mr. Jayant Mehta appearing for the Appellant submits that prescribed period for filing an Appeal is 30 days, extendable to 15 days, expired on 30th July, 2022. On 30th July, 2022 and 31st July, 2022, the Tribunal was closed hence the captioned Appeal has been filed on 01st August, 2022 at 12:08 AM being the next working day. It is submitted by virtue of Section 4 of the Limitation Act, 1963 the filing of the Appeal on 47th day was within the period of limitation as 30th and 31st July, 2022 being closed hence the Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47th Day. The first submission of the Appellant is that 30th and 31st day being holiday and Court reopened on 1st August, 2022 only, hence filing the Appeal on 01st August, 2022 is within time. Reliance has been placed on Section 4 of the Limitation Act, 1963. Section 4 is as follows: 4. Expiry of prescribed period when Court is closed. Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal, or application may be instituted, preferred or made on the date when the Court re-opens. Explanation.- A Court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day. 9. Section 61 of the IBC, 2016 which provides for limitation of filing an Appeal. Section 61(2) is as follows: (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: 10. The Limitation as prescribed by Section 61(2) is 30 days. Under proviso, the Appellate Tribunal may allow an Appeal to be filed after said period of 30 days if it is satisfied that there is sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 in the jurisdiction of the court or other cause of a like nature. Explanation.- For the purposes of this section,- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. 12. Section 14 of the Limitation Act in strict terms does not apply to the Appeal which is clear from the plain reading of Section 14 of the Limitation Act. The limitation act uses the expression Application , Suit and Appeal differently and the provisions in the schedule providing for limitation of Application, Suit and Appeal are all different. When we look into Section 4 and Section 12 of Limitation Act, both the sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct would not be applicable to the proceedings before a quasi-judicial Tribunal, however, the principles underlying the same would be applicable i.e. the proper approach will have to be of advancing the cause of justice, rather than to abort the proceedings 13. Hon ble Supreme Court in the facts of the above case held that in the Appeal filed before the Appellate Tribunal, the provisions of principle under Section 14 could have been invoked. In paragraph 78 of the above Judgement, following has been laid down: 78. In the present case, perusal of the writ petition would reveal, that it was the specific case of KIAL, that its application, objecting to the application of RP for approval of the resolution plan was heard by a Member (Judicial), whereas, the final orders were passed by a Bench consisting of Member (Judicial) and Member (Technical). It has specifically averred, that though an alternate remedy was available to it, it was invoking the jurisdiction of the High Court since the question involved was also with regard to the manner in which the jurisdiction was exercised by NCLT. It could thus be seen, that KIAL was bona fide prosecuting the proceedings before the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue; and (5) Both the proceedings are in a court. 17. From the facts of the present case, it is clear that Appellant is claiming benefit of Section 14 on the basis of I.A. No. 145 of 2022 filed in the same proceeding i.e. C.P. IB No. 107/ALD/2019. In which proceeding, by Impugned Order, I.A. No. 79 of 2022 has been allowed. I.A. No. 145 of 2022 was filed by the Appellant. Subsequent to filing of I.A. No. 145 of 2022, this Application was ultimately withdrawn on 18th July, 2022 by the Learned Counsel appearing for the Applicant/Appellant. Following Order was passed on 18th July, 2022 in I.A. No. 318 of 2021 and I.A. No. 145 of 2022: IA No. 318/2021 I.A. No. 145/2022 Ms. Jagriti Dosi, Advocate for the applicant. It is stated by Ld. Counsel for the applicant that since the Resolution Plan has already bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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