TMI Blog2024 (3) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of 15 days only. The statutory construct is absolutely clear and unambiguous that the limitation period provided under Section 61(2) of IBC is 30 days which is extendable by a maximum of 15 days. Thus, no appeal can be filed after the expiry of the extended period of 15 days and that any appeal filed within the extended limitation period can be admitted only after satisfying the Appellate Tribunal that there was sufficient cause justifying the delay of 15 days. IBC by virtue of being a special statute, this Tribunal is not empowered to condone any delay beyond the statutory prescriptions in IBC containing a provision for limitation. This legal precept has been squarely laid down by the Hon ble Supreme Court and for this purpose reference made to the judgement of the Hon ble Supreme Court in Kalpraj Dharamshi vs Kotak Investment Advisors Ltd [ 2021 (3) TMI 496 - SUPREME COURT] wherein it has been noticed that IBC being a special statute, for purposes of calculating the period of limitation to file an appeal, the governing section shall be Section 61 of the IBC. Section 61 of the IBC has to be interpreted keeping in mind the overall purpose and object of the IBC which inter-alia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed vide I.A. No.1009 of 2024 seeking condonation delay of 41 days in filing the present appeal. 2. The Learned Counsel for the Appellant submitted that since the Adjudicating Authority had passed ex-parte order in the main company petition CP-IB/277(MB)/2023 on 27.06.2023, the Appellant had no knowledge of the proceedings. The Appellant became aware of the proceedings only when the interim resolution professional informed the Appellant on 06.12.2023 about the impugned order through email. It is the case of the Appellant that an appeal can be filed by an aggrieved person only when he becomes aware of the order and in the present circumstances when the Appellant became aware of the orders only on 06.12.2023, the limitation period should be counted from that date. Further it was submitted that some time needs to be excluded while calculating the limitation period in the present case. Explaining further, it was pointed out that as the Appellate Tribunal was having Winter/Christmas holidays from 23.12.2023 till 01.01.2024, this holiday period of 9 days needs to be excluded. Basis this calculation, the period of 30 days for filing the appeal would have expired on 13.01.2024 which dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f substantial cause of justice 4. The Learned Counsel for the Respondent No. 1 refuting the submissions of the Appellant stated that the Appellant was raising a frivolous contention of being unaware of the company petition proceedings before the Adjudicating Authority. In the exhibits attached to their Reply Affidavit, it is stated that the Appellant was intimated by the counsel for the Respondent No.1 of the interim orders passed by the Adjudicating Authority on 31.03.2023 (Exhibit-A of Reply affidavit). It is also submitted that the Appellant had sent an email on 18.04.2023 to the Advocate of the Respondent No.1 seeking help in the matter (Exhibit-A of Reply affidavit). The Appellant was in fact represented by his advocate before the Adjudicating Authority on 26.04.2023 (Exhibit-B of Reply affidavit). Furthermore, a free copy of the impugned order dated 22.11.2023 had also been served upon the Appellant by email on 29.11.2023 by the Registry of the NCLT, Mumbai (Exhibit-D of Reply affidavit) and therefore it is not open for the Appellant to take the plea that he was not aware of the impugned order. It was also submitted that the Appellant had attended the first COC meeting on 28. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days. 8. From a plain reading of the above provision, it can be safely inferred that any person aggrieved by any order of the Adjudicating Authority is vested with the statutory right of filing an appeal. However, the statutory right to file the appeal is required to be exercised within a period of 30 days of the impugned order before this Tribunal. If for certain reasons the right to file appeal is not exercised within the prescribed 30 days, the proviso to Section 61 (2) can be invoked which proviso provides that the appeal can still be filed subject to such appeal being filed up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty days. 11. The same guiding principle has been further expounded by the Hon ble Supreme Court in V. Nagarajan vs SKS Ispat and Power Ltd ors in Civil Appeal No. 3327 of 2020 wherein the need to bear in mind the stringent time-frame of IBC and the need to avoid delays in taking the insolvency proceedings to their logical culmination has also been squarely emphasised. The relevant portions of the judgment are to the effect: 15. The IBC is a complete code in itself and over-rides 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogies Private Limited v. Regional Provident Fund Commissioner in Civil Appeal No. 2212 of 2021 wherein after making reference to Kalpraj Dharamshi supra, it was held that an appeal against the order of the NCLT shall be preferred within a period of 30 days from the date on which the order was passed by the NCLT. It was also held therein that the Appellate Tribunal has the power to extend the period of limitation by another 15 days. The Hon ble Supreme Court in the said order clearly rejected the submission that time for filing the appeal shall begin from the date of knowledge. 14. This brings us to the judgement of the Hon ble Supreme Court in National Spot Exchange Ltd v Mr. Anil Kohli, Resolution Professional for Dunar Foods Ltd in Civil Appeal No. 6187 of 2019 which has been relied upon by the Respondent No. 1. We notice that in this judgement it was held that since the statutory provisions provide that delay beyond 15 days in preferring the appeal is uncondonable, then what cannot be done directly considering the statutory provisions cannot be permitted to be done indirectly even in exercise of powers under Article 142 of the Constitution. 15. It needs no emphasis that judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed on record by the Respondent. This makes it amply clear that the Appellant was well aware that the Adjudicating Authority had passed the impugned order but for reasons better known to themselves they did not show due diligence in filing the appeal in a timely fashion. 18. Another ground taken for the delay is that due to Christmas vacations, the Tribunal was closed and hence the Appellant was restrained from filing the appeal. This explanation lacks merit since the Registry of this Tribunal was operational during this period and the facility of e-filing was available 24 by 7. The Appellate Registry where the appeals are lodged was actually e- functional during this period. Thus, the Appellant cannot rightfully claim that it was precluded from filing the appeal during this period and seek exclusion of time on the lame and facile pretext that this Tribunal was closed. 19. This now brings us to the judgement of this Tribunal in M/s Embee Software supra which has been relied upon by the Appellant. We notice that the facts in both the cases are distinguishable since in that case it was claimed that delay in obtaining the certified copy of the impugned order was occasioned by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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