TMI Blog2023 (1) TMI 1146X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2023, is barred by time, and further that the IA No. 34 of 2023 in CA (AT) (CH) (INS. No.) 13 of 2023, seeking to condone the delay of 14 days, in filing the instant Appeal, is per se, not maintainable, and the delay in question, is not a condonable one. Application dismissed. - IA No. 34 of 2023 in Company Appeal (AT) (CH) (INS.) No. 13 of 2023 and Company Appeal (AT) (CH) (INS.) No. 13 of 2023 - - - Dated:- 27-1-2023 - [Justice M. Venugopal] Member (Judicial) And [Shreesha Merla] Member (Technical) For the Appellant : Mr. Vijay Narayan, Senior Advocate For Mr. K. Moorthy, Advocate For the Respondent No.1 : Mr. P.H. Arvindh Pandian, Senior Advocate For Mr. Pradeep Joy, Advocate For the Respondent No.2 : Mr. Satish Parasaran, Senior Advocate For Ms. Harshini Jhothiraman, Advocate ORDER (Virtual Mode) Justice M. Venugopal, Member (Judicial): IA No. 34 of 2023 in Comp. App (AT) (CH) (INS.) No. 13 of 2023: According to the Petitioner / Appellant (not being a Party ), to the IA (IBC) No. 39 of 2022 in TCP (IB) No. 33 / 7 / AMR /2019, filed by the 1st Respondent / Liquidator / Petitioner , after coming to know of the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed period then the act or proceeding is considered as done in due time if it is done or taken on the next day afterwards on which the court is open 12.12.2022 (Monday) Filing of physical copies of the appeal on the 45th day i.e. the physical copies of the appeal is filed within 3 days of e-filing. In term of the NCLAT Circular in F.No. 23/4/2022 Estt. / NCLAT dt. 24.12.2022. The hard copy has to be filed within 7 days of e-filing 5. The Learned Counsel for the Petitioner / Appellant , refers to the Circular of this Tribunal , in F. No.23/4/2022-Estt./NCLAT dated 24.12.2022 and submits that having taken note of the current situation, the Circular was issued, withdrawing the previous Order in F.No.10/37/2018-NCLAT dated 21.10.2022 and the same is as follows: (2) Limitation shall be computed from the date of e-filing. The hard copy has to be filed within 7 days of e-filing. However, the competent authority is at liberty to notify to extend the period of filing hard copy in case of any unforeseen exigency. In a case where hard copy is filed after 7 days, the appeal will be placed before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble Supreme Court of India dated 22.10.2021, in V. Nagarajan v. SKS Ispat and Power Limited and Ors. (vide Civil Appeal No. 3327 of 2020), is inapplicable , to the facts of the instant Comp. App (AT) (CH) (INS.) No. 13 of 2023, because of the reason that in the present case, the Appeal is filed well within the specified period, as per Section 61 (2) of the I B Code, 2016. That apart, in the Judgment of the Hon ble Supreme Court of India in V. Nagarajan s case, the Appeal , was filed beyond a period of limitation, prescribed under Section 61 (2) of the I B Code, 2016. 11. On behalf of the Petitioner / Appellant, it is represented before this Tribunal , that in the instant matter, the impugned order dated 26.10.2022, was made in IA (IBC) No. 39 of 2022 in TCP (IB) No. 33 / 7 / AMR / 2019, on the file of the Adjudicating Authority ( National Company Law Tribunal , Amaravati Bench, Mangalagiri), and that the said Order of the Adjudicating Authority , was uploaded on the Efiling Portal , on 09.12.2022, (Friday the 44th day, from the passing of the impugned order , by the Adjudicating Authority ), and the physical copy of the Appeal , was submitted before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal with delay of 17 days 16. Advancing his arguments, the Learned Counsel for the 1st Respondent, refers to the Circular of this Tribunal in F.No.10/37/2018-NCLAT, dated 21.10.2022 and points out that a Circular mandated that the date of physical filing alone would be reckoned as relevant for the purpose of computing the Limitation . 17. In this regard, the Learned Counsel for the 1st Respondent, adverts to the relevant portion of the aforesaid Circular Order , dated 21.10.2022, which runs as under: Hence, with regard to computation of limitation in Appeals, following directions are hereby issued by the Competent Authority:- (1) The period of limitation shall be computed from the date of presentation of Appeal as per Rule 22 of the NCLAT Rules, 2016. (2) The requirement of filing Appeals by electronic mode shall continue along with mandatory filing of the Appeals as per Rule 22 of the NCLAT Rules, 2016. (3) This order will be effective with effect from 1st November 2022. 18. The Learned Counsel for the 1st Respondent, takes a stand that from the above Circular , which came into effect from 01.11.2022, the date of present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing date , for the first time. 24. The Learned Counsel for the 1st Respondent points out that the Appellant , while admitting the date of physical filing, ought to be reckoned as the date for computing the Limitation , had argued that the 45th day , i.e., 10.12.2022, falls on a Saturday , and that 12.12.2022, being the next working day , should be calculated as the last date of Limitation , as per Section 10 of the Limitation Act, 1963. 25. The Learned Counsel for the 1st Respondent points out that the Appellant has endeavoured to hinder the Corporate Insolvency Resolution Process and the Liquidation Proceedings , of the Corporate Debtor , from the first day, and one of the Assets , was sold in e-auction dated 08.12.2021, was the Residential Property at Jubilee Hills, Hyderabad, belonging to the Corporate Debtor , and that the said Property , is in possession of the Appellant . Moreover, the Liquidator , had filed a Petition (IA No. 352 of 2022 on 11.11.2022), to direct the Appellant , to extend co-operation to the Liquidation Proceedings , as per Section 35 (1) (n) of the I B Code, 2016, and the same is pending. 26. The Learned Counsel for the 1st R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the time of the enactment as also to proceedings commenced thereafter, notwithstanding that the cause of action may have arisen before the new provisions came into force. However, it must be noted that there is an important exception to this rule also. Where the right of suit is barred under the law of limitation in force before the new provision came into operation and a vested right has accrued to another, the new provision cannot revive the barred right or take away the accrued vested right. At this juncture, we may again note Section 6 of the General Clauses Act, as reproduced herein earlier. Section 6 of the General Clauses Act clearly provides that unless a different intention appears, the repeal shall not revive anything not in force or existing at the time at which the repeal takes effect, or affects the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or affect any right, privilege, obligation or liability acquired, accrued, or incurred under any enactment so repealed. 23. From the above, it is clear that the right of action, which is barred by limitation at the time when the new act comes into force, cannot be revived b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imitation' and, therefore, not 'prescribed period' for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to Sub section (3) of Section 34 of the 1996 Act being not the 'period of limitation' or, in other words, 'prescribed period', in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case. 25. Therefore, the appellants cannot claim the benefit of the order passed by this Court on 23.03.2020, for enlarging, even the period up to which delay can be condoned. The second contention is thus untenable. 31. The Learned Counsel for the 1st Respondent, cites the Judgment of the Hon ble Supreme Court of India, in Assam Urban Water Supply and Sewerage Board v. Subash Projects and Marketing Limited (2012) 2 SCC 624 (vide Civil Appeal No. 2014 of 2006 dated 19.01.2012), wherein, at Paragraphs 6 to 9, it is observed as under: 6. Mr. Shyam Divan, learned senior counsel for the respondents, on the other hand, submitted that the High Court did not commit any err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajan v. SKS Ispat and Power Ltd. and Ors., reported in MANU/SC/0956/2021 : 2022 2 SCC 244, wherein at Paragraphs 21 and 25, it is observed as under: 21. The answer to the two issues set out in Section C of the judgement- (i) when will the clock for calculating the limitation period run for proceedings under the IBC; and (ii) is the annexation of a certified copy mandatory for an appeal to the NCLAT against an order passed under the IBC - must be based on a harmonious interpretation of the applicable legal regime, 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 aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein, at Paragraphs 9 to 12, it is observed as under: 9. In this connection, it is out of place for this 'Tribunal', to make a pertinent mention of the 'Hon'ble Supreme Court Judgment' (Three Member Bench) between V. Nagarajan Versus SKS Ispat and Power Ltd. Ors., wherein at 'Paragraph 21', it is observed as under: - The answer to the two issues set out in Section C of the judgement- (i) when will the clock for calculating the limitation period run for proceedings under the IBC; and (ii) is the annexation of a certified copy mandatory for an appeal to the NCLAT against an order passed under the IBC - must be based on a harmonious interpretation of the applicable legal regime, 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 SCC at Page 244 and also in the light of the order dated 12.10.2022 in the Comp. App. (AT) (Insolvency) No.1169 of 2022 between Exide Industries Ltd. V. Jitender Kumar Jain, Resolution Professional of Morakhia Copper Alloys Pvt. Ltd., passed by the Principal Bench, New Delhi, this 'Tribunal' comes to a 'resultant conclusion' that the instant Comp. App. (AT)(CH)(Ins) No.371/2022 is liable to be 'dismissed', as 'not maintainable' and accordingly, the same is 'dismissed'. The connected IA No.869/2022 is Closed. 2nd Respondent s Submissions : 35. On behalf of the 2nd Respondent / Successful Purchaser (in Liquidation Process ), it is submitted that the delay beyond 15 days , cannot be condoned , and further that in the present case, the 45th day , happened to be a Saturday , Viz. 10.12.2022, and that the Filing was done on 12.12.2022 (Monday). 36. Also that, it is projected on the side of the Learned Senior Counsel for the 2nd Respondent that the instant Appeal , being time barred , on the 45th day Viz. on 10.12.2022, cannot be resurrected by means of withdrawal of the earlier Order dated 21.10.2022 of the NCLA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the instant Comp. App. (AT) (CH) (INS) No. 13 of 2023, before this Tribunal , on 09.12.2022 at 1.00 P.M. (through E-filing Portal vide Filing No. 9805118 / 02500 / 2022 Bharatkosh ID : 091222010335), by making a payment of Rs.5,000/-. In fact, the e-filing was completed on 09.12.2022 and the payment was made successfully. 43. As per Section 61 (2) of the I B Code, 2016, every Appeal , under sub-section 1 of Section 61 (1), shall be filed by any person , aggrieved by the Order of the Adjudicating Authority , within 30 days before the National Company Law Appellate Tribunal . In reality, the Appellate Tribunal , shall condone the delay beyond 30 days , but shall not exceed 15 days, provided sufficient cause was shown, for not filing the Appeal , ofcourse, after the expiry of 30 days from the date of passing of the order , by an Adjudicating Authority . 44. In the instant case, the impugned order dated 26.10.2022 in IA No. 39 of 2022 in TCP (IB) No. 33 / 7 / AMR / 2019, was passed by the Adjudicating Authority ( National Company Law Tribunal , Amaravati Bench). For preferring an Appeal , by an Aggrieved Person ( Appellant ), as per Section 61 (1) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CLAT Rules, 2016, within the period of Limitation at the Filing Counter . Rule 22 of the NCLAT Rules, 2016: 49. For fuller and better appreciation of the subject matter in issue, this Tribunal , pertinently, refers to Rule 22 of the NCLAT Rules, 2016 , which reads as under: 22. Presentation of Appeal. _ (1) Every appeal shall be presented in Form No.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l , and hence the instant Company Appeal , is well within the period of Limitation, this Tribunal , has succinctly and unerringly point out that, in view of the Order dated 21.10.2022 of this Tribunal , was in force and the same was not annulled, varied or superseded and was alive and in existence, the falling back upon of Section 10 of the General Clauses Act, 1897 , is nothing, but an exercise in futility, as held by this Tribunal , against the Appellant . 54. Be that as it may, in the light of foregoing detailed upshot, this Tribunal , on a careful consideration of divergent contentions advanced on either side, and also taking into account of the facts and circumstances of the present case in an encircling manner, comes to a consequent conclusion that the instant Comp. App (AT) (CH) (INS.) No. 13 of 2023, is barred by time , and further that the IA No. 34 of 2023 in CA (AT) (CH) (INS. No.) 13 of 2023, seeking to condone the delay of 14 days , in filing the instant Appeal , is per se , not maintainable , and the delay in question, is not a condonable one. Viewed in that perspective, the IA No. 34 of 2023, fails. Result : In fine, IA No. 34 of 2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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