AI Structured Summary
Not yet generated for this judgment
Judgment
Learned Counsels of Appellant(Applicant) and Respondent No. 1 were heard on I.A. No. 909 of 2020 in CA (AT)(Ins) No. 35 of 2020 on 4.10.2021.
It is recalled that the main Company Appeal (AT) (Ins) No.35 of 2020 was filed by the Appellant, wherein this Tribunal gave the following order on 8.1.2020 :-
"08.01.2020 Learned Counsel for the Appellant submits that the impugned order dated 6th June, 2019 was brought to the notice of the Income Tax Department on 30th October, 2019 by the Corporate Debtor‟. Thereafter, the certified copy was applied for and received on 20th December, 2019. Therefore, there is no delay in filing the appeal. However, on the safe side application for condonation of delay has been filed.
Taking into consideration the aforesaid fact, we hold that the appeal has been filed within the time i.e. 30 days from the date of receipt of the certified copy of the impugned order.
I.A. No. 102 of 2020 stands disposed of.
Learned Counsel for the Appellant prays for and is allowed to implead Jyoti Stips Ltd.‟(Successful Resolution Applicant) as 2ndRespondent. Necessary corrections be made in the cause title of the appeal and other relevant pages of the paper-books by 9th January, 2020."
Additionally, by order dated 8.1.2020 the Successful Resolution Applicant (Jyoti Stips Ltd.) was also permitted to be impleaded as Respondent No. 2 at the request of the Learned Counsel for Appellant. Thereafter notice was directed to be issued to the Respondents and the appeal was listed for hearing on admission (after notice). In response, Respondent No. 1 filed I.A. No. 909 of 2020 raising the objection that the appeal was time barred. Therefore, the present appeal may be dismissed, as it has been out of limitations.
The Appellant (who is Respondent in the IA), filed reply to I.A. No. 909 of 2020 vide Diary No. 29375 dated 2.9.2021.
The Learned counsel for Appellant, has stated in his arguments as follows:-
(i) The Assistant Commissioner of Income Tax was informed by the Resolution Professional (RP) about the initiation of Corporate Insolvency Resolution Process (CIRP) of the Corporate Debtor on 26.12.2018, while replying to the notice issued by the Income Tax Department under sections 144 and 147 of the Income Tax Act, 1961. Therefore, the Appellant was aware of the initiation of the CIRP of the Corporate Debtor, but took no steps to file its claim (Copy of letter dated 26.12.2018 is attached at pp. 150-151 of I.A No. 909 of 2020).
(ii) On 16.9.2019, Uttam Strips Ltd. (Respondent No. 1) filed reply to notice dated 24.8.2019 on the online portal of Income Tax Department whereby Respondent No.1 informed the Appellant about the initiation of CIRP proceedings against Corporate Debtor (Copy of the letter dated 6.9.2019 is attached at pp.152-158 of IA No.909/2020).
(iii) The Assistant Commissioner of Income Tax wrote a letter in October, 2019 to the Oriental Bank of Commerce. In reply Respondent No. 2 vide letter dated 17.10.2019, sent copy of order dated 9.4.2018 of the Adjudicating Authority regarding initiation of CIRP and order dated 6.6.2019 regarding approval of the Adjudicating Authority to the Resolution Plan to the Assistant Commissioner, Income Tax Department (attached at pp. 159-160 and typed copies at pp. 159A-160A of IA No. 909 of 2020).
(iv) Again on 18.10.2019, Respondent No. 1 filed reply to the notice dated 23.9.2019 on the online portal of Income Tax Department, informing Appellant of the approval of the Resolution Plan on 6.6.2019 (copy attached at pp.167-170 of IA No. 909 of 2020). Thus on 18.10.2019, Appellant was again made aware of the order dated 6.6.2019 and a copy of the said order was also conveyed to the Appellant.
(v) In para 4 of the appeal filed by the Appellant seeking condonation of delay, Appellant has said that he applied for certified copy of the order on 9.12.2019 which was made available on 16.12.2019. Since it was copy of an order which was not sought, he applied for copy of impugned order on 17.10.2019 and got it on 26.12.2019 whereafter the appeal was filed on 27.12.2019.
The Learned Counsel for Appellant has stated that IA No. 909/2020 is not maintainable, as it is a misconceived application seeking review of Hon'ble NCLAT's order dated 08.01.2020, whereby this Tribunal had condoned the delay in filing of the appeal on reasonable grounds. He has claimed that the Applicant has filed IA No. 909 of 2020 in the garb of invoking the inherent power available to NCLAT under Rule 11 of the NCLAT Rules, 2016, even though the inherent powers are meant only for meeting the ends of justice and to prevent any miscarriage of justice and not for reviewing a legal order. He has stated that this Hon'ble Tribunal has, in order dated 08.01.2020, given the final order on the application for condonation of delay, and if the Applicant is aggrieved by such order, he should file proper appeal for the same, as is required under law.
The Learned Counsel for Appellant has cited judgment dated 03.03.2021 of this Tribunal in Company Appeal (AT)(Ins) No. 379 of 2020 [Adish Jain s/o Mohinder Jain (Shareholder of Corporate Debtor) Vs. Sumit Bansal (IRP of Corporate Debtor] wherein it has been held that the power to review is not an inherent power of the Tribunal and such a power has to be conferred by a statute. He has claimed that there is no provision for review in NCLAT Rules, 2016, and the power vested under Rule 11 can only be exercised to further the cause of justice, or prevent abuse of process.
The Learned Counsel for Appellant has cited the observations made by Hon'ble NCLAT in the case of Adish Jain s/o Mohinder Jain (Shareholder of Corporate Debtor) Vs. Sumit Bansal (IRP of Corporate Debtor] (Supra), wherein the judgment of Hon'ble Supreme Court in the case of Lily Thomas and Ors. Vs. Union of India & Ors. [(2006) 6 SCC 224] has been cited, which is as under:-
"56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits o the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review..."
We are of the considered view that the decision of the Hon‟ble Supreme Court in "Lily Thomas and Ors. Vs. Union of India (Supra) applies. The correction of the Judgement sought for in the present Review Application is impermissible in Law.
.......
We observe that there is no mistake apparent from the record and the Applicant cannot be permitted to seek re-hearing of the Appeal in regard to any finding which amount to sitting in an Appeal in disguise. In the grab of this Review Application, the Applicant seeks to reargue the matter.‟
(emphasis supplied)
The Ld. Counsel of Appellant has also placed reliance on the decision in N. Balakrishnan v. M. Krishnamurthy [(1998) 7 SCC 123], wherein the Apex Court has held that the rules of limitation are not meant to destroy the rights of the parties and the law of limitation fixes a life span for legal remedy for the redress of any legal injury. He has contended that limitation should be counted from the date of knowledge of the Impugned Order i.e. 30.10.2019 and 45 days from the date of knowledge would expired on 14.12.2019. Therefore, since the Appellant applied for obtaining certified copy on 9.12.2019 and he received the desired copy of Impugned Order on 26.12.2019, and the appeal was filed immediately thereafter on 27.12.2019, the appeal is within the time limit of 45 days as required in law. Hence, the appeal is well within limitation.
We note that this Tribunal passed order on 8.1.2020 based on the arguments and statements put forth only by the Learned Counsel for Appellant. We also note that later, after issue of notice to Respondent No.1, certain other facts were placed before this Tribunal regarding the prior knowledge of the Impugned Order to the Appellant. All these instances have been stated by the Learned Counsel for Respondent No. 1/Applicant in IA No. 909 of 2020 (supra). These contentions which are based on various documents and records referred to and cited by the Learned Counsel for the Applicant have not been converted or disputed by the Learned Counsel for Appellant and they.
Hence, as stated by the Applicant of IA No. 909 of 2020, Appellant came to know of order of approval of Resolution Plan on 17.10.2019, the maximum period of 45 days will expire on 1.12.2019. Even if an exemption for period of 11 days spent in getting certified copy of order is given, the period of limitation will expire on 14.12.2019. Thus appeal filed on 27.12.2019 is clearly time barred.
Even if starting date of limitation is taken from 18.10.2019, when Respondent No. 1 filed reply to the notice dated 23.9.2019 on the online portal of Income Tax Department informing Appellant of the approval of the Resolution Plan, the maximum prescribed 45 days period of limitation would expire on 2.12.2019. After excluding 11 days period that was spent in obtaining certified copy of the order, the limitation would expire on 13.12.2019. Even then the limitation appeal filed on 27.12.2019 is time barred.
Section 3 of the Limitation Act, 1963 states as follows:-
"3. Bar of limitation - (1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence."
Thus we find that Appellant was adequately informed and well aware of the initiation of CIRP and approval of the Resolution Plan and yet he did not file any claim with the Resolution Professional. The Learned Counsel for Applicant of IA No. 909 of 2020) has, therefore, emphatically stated that since the Appellant was well aware of the initiation of CIRP much before 9.12.2019, when he applied for obtaining certified copy of the Impugned Order, therefore, the appeal is barred by limitation of time.
We are of the clear view that, since new facts have come to light through I.A. No. 909 of 2020 filed by the Respondent No. 1 in the Appeal, which were not brought to this Tribunal's notice/knowledge on 8.1.2020, they should now be considered in the interest of justice.
In the light of the aforementioned discussion, I.A No. 909 of 2020 succeeds and the prayers made therein are granted. As a result, Company Appeal (AT)(Ins) No. 35 of 2020 is held to be time barred and therefore, dismissed at the present stage. There is no order as to costs.