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TMI Blog2024 (3) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... LT, Principal Bench, New Delhi dated 24th April, 2023 in I.A. No. 702/PB/2022 by which order, the Adjudicating Authority has approved the Resolution Plan of the Corporate Debtor-Sare Gurugram Pvt. Ltd. This Appeal has been e-filed on 25th January, 2024, there being delay in filing the Appeal, I.A. No. 808 of 2024 has been filed. 3. Company Appeal (AT) Ins. No. 367 of 2024 has been filed challenging the Order passed by the NCLT, Principal Bench, New Delhi dated 24th April, 2023 in I.A. No. 702/PB/2022 by which order, the Adjudicating Authority has approved the Resolution Plan of the Corporate Debtor-Sare Gurugram Pvt. Ltd. This Appeal has been e-filed on 09th January, 2024, there being delay in filing the Appeal, I.A. No. 1251 of 2024 has been filed. 4. We have heard Learned Counsel for the parties on the delay condonation applications. Both the Delay Condonation Applications raises same question of facts and law hence they have been heard together. 5. In I.A. No. 808 of 2024, prayer is to condone the delay of 223 days in filing the Appeal. 6. In I.A. No. 1251 of 2024, prayer is to condone the delay of 230 days in filing the Appeal. 7. I.A. No. 808 of 2024: The brief facts givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceeding, could not file the Appeal. 9. Learned Counsel for the Appellant in support of Delay Condonation Applications submits that Appellant being unaware of the Order, Appellant could not file and right to file appeal could arise only when Appellant came to know about the order. The limitation for filing the Appeal shall not commence from the date when order was passed by the Adjudicating Authority. In the facts of the present case the Appellants have filed the Appeal within condonable period of 15 days. It is submitted that although there is no quarrel to the preposition that this Tribunal has jurisdiction to condone the delay of 15 days only but Appellant being not party to the proceeding and having come to know only in October, 2023, Appellants filed these Appeals within condonable period. It is submitted that Appellant having no knowledge either of initiation of CIRP or order approving the Resolution Plan and having come to know about the same court proceeding in October, 2023, the delay is within condonable period. It is submitted that the statutory provision under Section 61(2) does not use the word "from the date of the order", Appeals being statutory right, the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ispat and Power Limited & Ors. (2022) 2 SCC 244. Hon'ble Supreme Court has noted the provision of Section 421 of the Companies Act and statutory changes made in the scheme by Section 61. Hon'ble Supreme Court after considering the aforesaid provisions have clearly held that conscious deletion of words earlier occurring in Section 421 of the Companies Act i.e. from the date on which copy of the Order of the Tribunal is made available to the person makes clear that there is a clear departure in the IBC statutory scheme. In para 31 to 33, Hon'ble Supreme Court laid down following: "31. The import of Section 12 of the Limitation Act and its Explanation is to assign the responsibility of applying for a certified copy of the order on a party. A person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the "time requisite" for obtaining a copy is to be excluded. However, the time taken by the court to prepare the decree or order before an application for a copy is made cannot be excluded. If no application for a certified copy has been made, no exclusion can ensue. In fact, the Explanation to the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution, extended the limitation until further orders, which renders the appeal filed on 8-6- 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 15-3-2020. In this case, owing to the specific language of Sections 61(1) and 61(2), it is evident that limitation commenced once the order was pronounced and the time taken by the court to provide the appellant with a certified copy would have been excluded, as clarified in Section 12(2) of the Limitation Act, if the appellant had applied for a certified copy within the prescribed period of limitation under Section 61(2) IBC. The construction of the law does not import the absurdity the appellant alleges of an impossible act of filing an appeal against an order which was uploaded on 12-3-2020. However, the mandate of the law is to impose an obligation on the appellant to apply for a certified copy once the order was pronounced by NCLT on 31-12-2019 [Cethar Ltd. (Resolution Professional) v. SKS Ispat & Power Ltd., MA No. 906/IB/2019 in CA No. 38/IB/2018, order dated 31-12-2019 (NCLT)] , by virt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction will upset the timely framework of 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." 13. Learned Counsel for the Respondent has placed reliance in Judgment of Hon'ble Supreme Court in Safire Technologies Pvt. Ltd. Vs. Regional Provident Fund Commissioner & Anr. C.A. No. 2212 of 2021 where Hon'ble Supreme Court specifically rejected the submission that period of limitation would start from the date of knowledge. The following was held by Hon'ble Supreme Court in the aforesaid case: The appellant contends that an appeal against an order passed by the NCLT has to be filed within 45 days from the date of passing of the order. In support of the said contention, the appellant relied upon the judgment of this Court in Civil Appeal Nos.2943-2944 of 2020 etc. dated 10.03.2021 titled Kalpraj Dharamshi & Anr. vs. Kotak Investment Advisors Ltd. & Anr. Learned counsel appearing for the respondent stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the appellant is a public body. We are afraid what cannot be done directly considering the statutory provisions cannot be permitted to be done indirectly, while exercising the powers under Article 142 of the Constitution of India. 17. At this stage, decision of this Court in ONGC Ltd. [ONGC Ltd. v. Gujarat Energy Transmission Corpn. Ltd., (2017) 5 SCC 42 : (2017) 3 SCC (Civ) 47 : AIR 2017 SC 1352] is required to be referred to. Before this Court, the question was with respect to delay beyond 120 days in preferring the appeal under Section 125 of the Electricity Act and the question arose whether the delay beyond 120 days in preferring the appeal is condonable or not. After considering various earlier decisions of this Court on the point and considering the language used in Section 125(2) of the Electricity Act which provided that delay beyond 120 days is not condonable, this Court has observed and held that it is not condonable and it cannot be condoned, even taking recourse to Article 142 of the Constitution. 20. Thus, considering the statutory provisions which provide that delay beyond 15 days in preferring the appeal is uncondonable, the same cannot be condoned even in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion "the date of that order" as occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the review petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart. 12. In Asstt. Transport Commr. v. Nand Singh [(1979) 4 SCC 19] the question of limitation for filing an appeal under Section 15 of the U.P. Motor Vehicles Taxation Act, 1935 came up for the consideration of this Court. It provides for an appeal being preferred "within thirty days from the date of such order". The taxation officer passed an order on 20-10- 1964/24-10-1964 which was received by the person aggrieved on 29-10-1964. The appeal filed by him was within thirty days - the prescribed period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart. 10. An identical point came up for the consideration of this Court in Raja Harish Chandra Raj Singh v. Dy. Land Acquisition Officer'. Section 18 of the Land Acquisition Act, 1894 contemplates an application seeking reference to the court being filed within six months from the date of the Collector's award. It was held that "the date of the award" cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office. It must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position, then placing a literal and mechanical construction on the words "the date of the award" occurring in the relevant section would not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al shall not commence till he is aware of the contents of the order, it may lead to uncertainty and delay in resolution process which are not in accordance with the scheme of the IBC. IBC is a statute which provide for timely resolution/ liquidation of the Corporate Debtor. Timeline for various acts are prescribed. The Hon'ble Supreme Court in "V. Nagarajan" (supra) has held that Section 61 has to be interpreted keeping in view the purpose and object of the IBC and Section 61 has to be put to interpretation in the above manner. We, thus, are of the view that the submission of the Appellant that the period of limitation shall commence for filing the Appeal when aggrieved party/ Appellant is aware of the contents of the order cannot be accepted. 17. In the present case as noticed above, the Impugned Order dated 24th April, 2023 was pronounced on 24th April, 2023 which is mentioned in the Impugned Order itself when order is pronounced by the Court the pronouncement is for all concerned. We having already held that Hon'ble Supreme Court in Safire Technologies Pvt. Ltd. (supra) laid down that commencement of the period of limitation for filing an appeal under Section 61 is not date wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court on 22nd January, 2024 has issued notice and passed following order: "Delay condoned. Issue notice and tag with Civil Appeal No.7943 of 2023 titled "Mithilesh Devi & Ors. vs. Asset Care and Reconstruction Enterprises Ltd. & Ors.". Notice will be served by all modes, including dasti. In the meanwhile, interim order dated 11.12.2023 passed in Civil Appeal No.7943 of 2023 will operate in the present case. Accordingly, third-party rights will not be created with respect to persons who have made payments for the flats or are in possession of the apartments. Further, the flat buyers in possession will not be dispossessed." 22. Learned Counsel for the Appellant has referred to various further orders passed by Hon'ble Supreme Court entertaining the civil appeals and issuing notice and passing interim orders. Learned counsel for the Respondent submitted that the Appeals in which notices have been issued by the Hon'ble Supreme Court are still pending consideration. It is submitted that the notices have been issued by the Hon'ble Supreme Court cannot be ground for this Appellate Tribunal to condone the delay which is beyond condonable period. 23. The mere fact that Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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