TMI Blog2023 (4) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... to the person aggrieved has significance - The Hon ble Supreme Court, thus, has clearly held that running of the limitation shall start from the date of pronouncement of the order and it is not dependent on the communication of the order to aggrieved person. The Appellant did not appear before the Adjudicating Authority despite service of notice, hence, it will be treated that it was served and the Appellant could not be heard in saying that the order dated 22.12.2022 is exparte and limitation to file appeal shall only begin when he has knowledge of the order. This submission of the Appellant cannot be accepted. It is further observed that even the ground taken in the delay condonation application that Appellant came to know about the order when he received letter of the Liquidator on 08.01.2023 is unfounded and not supported by any material. Whereas the Liquidator in his reply has brought material on record which indicate that order was sent by Liquidator on 04.01.2023 by email to the Appellant. Thus, even if, for argument sake only, if limitation is calculated from date of receipt of email, then also the Appeal filed was beyond 15 days after expiry of limitation. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is submitted that the Appellant has not filed any material alongwith the delay condonation application to show that the letter dated 29.12.2022 was received on 08.01.2023. It is submitted that 08.01.2023 is an imaginary date given by the Appellant for the purposes of delay condonation application which has no basis or foundation. 3. We have heard Shri Gaurav Mitra, learned counsel for the Appellant as well as learned counsel appearing for the Liquidator. 4. Shri Gaurav Mitra, learned counsel for the Applicant/ Appellant submits that the impugned order being ex-parte to the Appellant, Appellant could have filed the appeal only after coming to know about the order, which he came to know on 08.01.2023 and from 08.01.2023 if limitation is computed, the Appeal being filed within 15 days after expiry of the limitation, there is delay of only 14 days, which need to be condoned. Learned counsel for the Appellant has referred to judgment of Hon ble Supreme Court in V. Nagarajan vs. SKS Ispat and Power Limited Ors., (2022) 2 SCC 244 and Pr. Director General of Income Tax vs. Spartek Ceramics India Ltd., 2018 SCC OnLine NCLAT 289 . 5. Learned counsel for the Liquidator refutin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or calculating the limitation period run for proceedings under the IBC . The Hon ble Supreme Court after considering the extensively has clearly held that limitation for filing Appeals shall commence from the date order is pronounced and the applicant is entitled to exclude the period consumed for obtaining certified copy of the order, if it is filed within the limitation. In Para 32 and 33 following has been laid down: 32. 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 suo motu order of this Court dated 23 March 2020, taking retrospective effect from 15 March 2020, made under Article 142 of the Constitution, extended the limitation until further orders, which renders the appeal filed on 8 June 2020 within limitation. However it is important to note that this Court had only extended the period of limitation applicable in the proceedings, only in cases where such period had not ended before 15 March 2020. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 defeat the substantive objective of a legislation that has an impact on the economic health of a nation. 9. The Hon ble Supreme Court, thus, has clearly held that running of the limitation shall start from the date of pronouncement of the order and it is not dependent on the communication of the order to aggrieved person. 10. Learned counsel for the Appellant has submitted that the order was passed ex-parte to the Appellant. In the Para 7 of the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion for filing appeal under Section 61 being 30 days, period of 90 days for filing appeal cannot be claimed to be available to the Appellant. In Para 55 and 56 following has been observed: 55. The limitation of thirty days has been prescribed under sub-section (2) of Section 61 for preferring an appeal against an order passed by the Adjudicating Authority, including the order passed under section 31(1) of the I B Code . The Appellate Tribunal for sufficient cause can condone the delay but such period cannot exceed fifteen days. Therefore, no appeal can be entertained after forty-five days of knowledge of order. The Central Government, thereby cannot grant ninety days period to prefer an appeal under section 61(1), which is contrary to Section 61(2) of the I B Code . 56. The difficulty as contemplated under Section 242 of the I B Code has not been mentioned by the Central Government in the notification in question. The Central Government in exercise of its powers conferred under Section 242, is competent to make provision to remove the difficulty in giving effect to the provisions of the I B Code , but it cannot be in conflict with nor can change the substantive ..... 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