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TMI Blog2022 (12) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... 019 and MA/ 625/ 2019 in CP/ 193/ IB/ 2018 by the 'Adjudicating Authority' (National Company Law Tribunal, Chennai Bench), whereby, the 'Adjudicating Authority' had dismissed the 'Miscellaneous Applications', filed under Insolvency & Bankruptcy Code, 2016 (in short 'I & B Code, 2016') Brief Facts: 2. Vipras Adz CA (AT) (Ins.) No. 442 of 2020 B. Akhilandeswari CA (AT) (Ins.) No. 443 of 2020 Mrs. S. Ravi CA (AT) (Ins.) No. 444 of 2020 P. Krishnamoorthy CA (AT) (Ins.) No. 445 of 2020 Sai Trading and Interiors CA (AT) (Ins.) No. 454 of 2020 Themes Adz CA (AT) (Ins.) No. 455 of 2020 G. Balaji CA (AT) (Ins.) No. 457 of 2020 Sai Enterprises CA (AT) (Ins.) No. 470 of 2020 The aforesaid 'Appellants' as indicated above with different CA (AT) (Ins.) Nos. are various 'Operational Creditors' of M/s P Dot G Constructions Pvt. Ltd. & Anr. who are aggrieved by the common 'impugned order' dated 13.12.2019 and have filed different eight appeals. Innova Homebuyer Neyveli Association CA (AT) (Ins.) No. 215 of 2020 The aforesaid 'Appellant' as indicated above with CA (AT) (Ins.) No. 215 of 2020 is an Association of the Homebuyers under caption 'Innova Homebuyer Neyveli Association' has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as provided in I & B Code, 2016', along with the Rule 22(2) of 'National Company Appellate Tribunal Rules 2016', further relevant and comparable rules on the subject including the 'Companies Act, 2013'. "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 the filing counter and non-compliance of this may constitute a valid ground to refuse to entertain the same. (2) Every appeal shall be accompanied by a certified copy of the impugned order. (3) All documents filed in the Appellate Tribunal shall be accompanied by an index in triplicate containing their details and the amount of fee paid thereon. (4) Sufficient number of copies of the appeal or petition or application shall also be filed for service on the opposite party as prescribed. (5) In the pending matters, all other applications shall be presented after serving copies thereof in advance on the opposite side or his advocate or authorised representative. (6) The proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Companies Act, 2013' which reads as under : "421. Appeal from orders of Tribunal - (1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal. (2) No appeal shall lie to the Appellate Tribunal from an order made by the Tribunal with the consent of parties. (3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order of the Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. (4) On the receipt of an appeal under sub-section (1), the Appellate Tribunal shall, after giving the parties to the appeal a reasonable opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against. (5) The Appellate Tribunal sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 defeat the substantive objective of a legislation that has an impact on the economic health of a nation. 22. 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 the 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 re-iterated in Rule 14 of the NCLAT Rules, the discretionary waiver does not act as an automatic exception where litigan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted para- 21 of the judgment pronounced by the Hon'ble Supreme Court of India in V. Nagarajan vs. SKS Ispat and Power Limited and Ors. (2022) 2 SCC (Supra) and in para-6 of the Judgment passed by this 'Appellate Tribunal' which is being discussed herein is also relevant and reproduced as under: - "Para-6. In view of the law laid down by the Hon'ble Supreme Court, the limitation for filing the Appeal begins when order was pronounced. The mere fact that Appellant received free certified copy of the Impugned Order on 27th July, 2022, the period of limitation shall not stop running after passing of the order/ judgment. Our jurisdiction to condone the delay is only limited to 15 days under Section 61(2) proviso. There being delay of more than 15 days, the Delay Condonation Application cannot be allowed. Application is dismissed. Consequently, the Memo of Appeal is rejected." [emphasis supplied] 17. It is the case of the 'Appellants' that on 03.02.2020 'Certified Copy' was delivered and as such the period of limitation is specified in Sub-Section 2 of Section 61 of the I & B Code, 2016 is complied with. However, from the record made available as well as from the averments made, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same day and that the 'Limitation Period' of 30 days for preferring the instant 'Appeal'', expired on 12.01.2020 and hence the instant 'Appeal', is filed with a minor delay of 15 days. 23. The reason assigned on behalf of the 'Petitioner / Appellant /Association', for the delay of around 15 days (in preferring the 'Appeal') is that, the 'Appellant /Association', has a large number of members and after consultation and coordination between the numerous 'Members', a decision was taken to prefer the 'Appeal', and further that the relevant papers were sent to the Advocate at Delhi, who took sometime to peruse the paper and draft the 'Appeal'. Also that, the 'President' of the 'Appellant / Petitioner / Association', was travelling for some period and that made it difficult to coordinate the signing of the 'Appeal', on an expedited basis. In that process, there has occasioned a delay of around 15 days, in preferring the instant Comp. App (AT) (INS) No.215 of 2020, which is neither wilful nor wanton, but due to the aforesaid 'Bonafide' reason. 24. In the instant case, the 'Appeal' was preferred by the Petitioner /Appellant', on 27.01.2020 (vide Diary No. 18236 of 2020 dated 27.01.2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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