9911796707
TMI Blog2024 (8) TMI 1558X X X X Extracts X X X X X X X X Extracts X X X X ..... . Advocate, Mr. Asav Rajan, Ms Charu Trivedi, Mr. Devang Shropriya, Advocates for R1. ORDER IA No.4166 of 2024 This is an application for condonation of delay in filing the appeal. There is a delay of 15 days. The same is objected to by the Learned counsel for Respondent No.1. He has raised two issues (a) certified copy was never applied or obtained by the appellant; and (b) the manner of calculating the period of limitation. 2. Qua issue (a) the learned counsel for the appellant submitted after the impugned order of dated 5th April, 2024 was passed, the appellant had immediately applied for a certified copy by moving an application before the Registry on 08.04.2024 itself and was given Application Number D4005. Thereafter a certified c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Company Appeal (AT)(Ins) No.588 of 2023 2023 SCC Online NCLAT 734 wherein this Tribunal held:- 12. From the submissions of the Counsel for the parties in both the Appeals, following questions arise for consideration: (i) Whether limitation for filing an Appeal under Section 61 of the IBC shall commence from the date of the order or from the date when contents of the order are known to the aggrieved party i.e. the date when copy of the order is received by an aggrieved party? (ii) Whether in the Delay Condonation Application being IA No.3694 of 2023 sufficient grounds have been made out to condone the delay in filing the Appeal? (iii) Whether in Delay Condonation Application being IA No.1956 of 2023 sufficient grounds have been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such, as per Section 61(2) of the I&B Code, the appeal was required to be filed on or prior to 28-12-2019. The appeal could have been filed within a further period of fifteen days, if NCLAT was satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days. As such, the said period would come to an end on 12-1-2020. The certified copy of the impugned judgment of NCLT was made available on 18-12-2019. If the allowance for the said period is granted, the appeal should have been preferred on or prior to 2-2-2020. However, in the present case, the appeal is filed on d 18-2-2020. It is also not in dispute, that immediately after the order was passed on 28-11-20192 by NCLT, KIAL preferred a writ petition bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view there exist a clear distinction as to when does the limitation starts and how the limitation period needs to be computed. Section 12 of the Limitation Act deals with computation of the limitation. Though much is said by the learned senior counsel for Respondent No.1 viz. per Section 29 of the Limitation Act, Sections 4 to 24 of the Limitation Act shall not be applicable in an appeal filed under other statutes, but the correct position of law is not so. Section 29 of the Limitation Act read:- 29. Savings.- (1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872). (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. 13. On a combined reading of Section 238A of the Code with Sections 12 and 29(2) of the Limitation Act, we cannot say the Code has excluded applicability of Sections 4 to 24 of Limitation Act. Rather Section 238A of the Code says the provisions of Limitation Act shall apply as far as may applicable to the proceedings under the Code. 14. Sub-section (2) of Section 12 rather makes it clear the date of pronouncement is out of window. This section deals with computation of Limitation and is in the teeth of specific provision of law viz Section 61 of the Code as also the judgements referred to above. A bare perusal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the NCLAT Rules, 2016 stipulates that the date from which the period of limitation has to be reckoned (i.e. the date of the pronouncement of the order) would have to be excluded. Hence, the date on which the order was pronounced by NCLT, namely, 26.08.2022 would have to be excluded from the computation of limitation. This is in line with Section 12(1) of the Limitation Act, 1963, As noted earlier, the provisions of the Limitation Act, 1963 are made applicable, inter alia, to appeals before NCLAT by virtue of Section 238-A IBC." 17. Thus per Sanket Kumar Agarwal (supra), the day of pronouncement shall have to be excluded for calculating the period for Limitation. Admittedly if it is excluded in the present case the appeal shall be withi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
