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TMI Blog2023 (4) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Code. The Adjudicating Authority by the impugned order has allowed the application and directed for reversal of the transaction in favour of the Corporate Debtor. The Appellant was Respondent No.2 in the said application. The proceeding before the Adjudicating Authority against the Respondent No.2 proceeded ex-parte since despite serving notice, Respondent No.2 (Appellant herein) did not appear, it has been recorded in Para 7 of the order. This Appeal against the above order has been e-filed on 22.02.2023. In the application for condonation of delay, the Appellant has taken the case that the order dated 22.12.2022 was received by the Appellant on 08.01.2023 under the covering letter dated 29.12.2022 issued by the Liquidator. The Appeal having been filed on 22.02.2023 is well within 45 days and there is only delay of 14 days which may be condoned. 2. Notices were issued on the delay condonation application by this Tribunal and a reply has been filed by the Liquidator opposing the condonation application. It is submitted that in the application under Section 5 there are material concealment. The Liquidator has forwarded the order dated 22.12.2022 by email dated 04.01.2023 at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 61 and has held that change in the scheme of Section 61 is a notable difference and the absence of the words "from the date on which a copy of the order of the Tribunal is made available to the person aggrieved" has significance. In Para 24 of the judgment following has been held: "24. The IBC is a complete code in itself and overrides any inconsistencies that may arise in the application of other laws. Section 61 of the IBC, begins with a non-obstante provision - "notwithstanding anything to the contrary contained under the Companies Act, 2013" when prescribing the right of an aggrieved party to file an appeal before the NCLAT along within the stipulated period of limitation. The notable difference between Section 421(3) of the Companies Act and Section 61(2) of the IBC is in the absence of the words "from the date on which a copy of the order of the Tribunal is made available to the person aggrieved" in the latter. The absence of these words cannot be construed as a mere omission which can be supplemented with a right to a free copy under Section 420(3) of the Companies Act read with Rule 50 of the NCLT Rules for the purposes of reckoning limitation. This would ign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received a certified copy in spite of the application till such date and accordingly received the benefit of the suo motu order of this Court which came into effect on 15 March 2020. However, in the absence of an application for a certified copy, the appeal was barred by limitation much prior to the suo motu direction of this court, even after factoring in a permissible fifteen days of condonation under Section 61(2). The Court is not empowered to condone delays beyond statutory prescriptions in special statutes containing a provision for limitation. 33. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n he has knowledge of the order. This submission of the Appellant cannot be accepted, in view of what has been stated above. 12. Learned counsel for the Appellant has also relied on Judgment of this Appellate Tribunal in "Pr. Director General of Income Tax vs. Spartek Ceramics India Ltd." (supra), where in Para 53 following observations have been made by this Tribunal: "53. As per sub-section (2) of Section 61, the appeal is required to be filed within thirty days before the NCLAT. The Appellate Tribunal is empowered to condone the delay of 'another fifteen days' after the expiry of the period of thirty days in preferring the appeal that too for sufficient cause. It has no power to condone the delay if appeal under Section 61 is preferred beyond fifteen days from the date of the expiry of the period of thirty days. Meaning thereby, no appeal under sub-section (1) of Section 61 can be entertained after forty-five days of knowledge of the order passed by the Adjudicating Authority." 13. The judgment of "Pr. Director General of Income Tax vs. Spartek Ceramics India Ltd." was a case where this Tribunal was considering the question of limitation for filing the Appeal by Pr. Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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