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Judgment
Heard Mr. Nitin Singh, Learned Counsel for the Appellant/Applicant, Learned Counsel appearing for SRA and Learned Counsel for RP.
This Appeal has been filed against the Order dated 23rd November, 2021 passed by National Company Law Tribunal, Principal Bench in IB-923/PB/2018 by which I.A. No. 4510 of 2021 filed by the Appellant was dismissed.
Appellant aggrieved by the said order has filed Civil Appeal No. 4095 of 2023 which Appeal was filed on 24.02.2022 and the same was decided on 26th July, 2023 in which following order was passed:
“Civil Appeal No.4095/2023
It appears that inadvertently in the Order dated 20.07.2023 the order to be recorded in the present appeal was recorded in C.A. No.4096/2023 where the learned counsel for the resolution applicant (R-2) had sought time to obtain instructions.
The order be corrected accordingly.
Civil Appeal No.4096/2023 & Civil Appeal No.4095/2023
It appears that the very basis on which the special leave petitions were tagged with C.A. No.5590/2021 in which we have reserved judgment would not apply to these cases as that is a different project. The factual debate must take place before the NCLAT on the application of the law and then would it be only appropriate for this Court to apply its mind against the I order of the NCLAT which is also a statutory remedy.
We do not think the correct approach would be to directly entertain the special leave petitions against the orders of the NCLT.
In view of the aforesaid, we dismiss the appeals with liberty to the appellants to avail of the remedy of appeal before the NCLAT within time.
The period from the date of filing of the special leave petitions till today would stand excluded for the purposes of filing of the appeals.”
After the Order of the Hon’ble Supreme Court dated 26th July, 2023, the present Appeal was filed by the Appellant on 21st August, 2023. The question which need to be considered is as to whether the Appeal is within condonable period or it is beyond condonable period.
We have heard Learned Counsel for the parties on the question of Delay in filing the Appeal
The submissions of Learned Counsel for the Appellant is that when the Hon’ble Supreme Court passed an order on 26th July, 2023 and Supreme Court observed that Appellant has remedy of Appeal before the NCLAT within time, the Supreme Court intended that Appeal should be filed within 30 days period. It is submitted that Appeal have been filed within 30 days from 26th July, 2023 which is not barred by time.
The submissions of the Appellant have been refuted by Learned Counsel for the Respondent who submits that limitation for filing the Appeal long expired before filing the Appeal on 24.02.2022 before the Hon’ble Supreme Court. It is submitted that the 30 days period expired on 23rd December, 2021 and further period of 15 days also came to an end on 07th January, 2022. It is submitted that liberty granted by the Hon’ble Supreme Court to file the Appeal was within time that is prescribed within Section 61 of the IBC, 2016. Learned Counsel for the Appellant has also referred to order of this Tribunal dated 23rd December, 2023. Learned Counsel for the Respondent further submits that Appellant has also filed an application for clarification of the order dated 26th July, 2023 which clarification application has also been dismissed on 01st December, 2023.
We have considered the submissions of Learned Counsel for the parties and have perused the record.
Limitation for filing the Appeal under Section 61(2) is as follows:
““(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.”
The Appeal was not filed within 30 days as provided under Section 61(2) of the Code. 15 days condonable period on sufficient cause as provided under Section 61(2) proviso came to an end on 07th January, 2022. Civil Appeal was filed on 24.02.2022 by the Appellant. Submission of the Appellant is that when the Hon’ble Supreme Court has observed that Appellant to avail remedy of Appeal before the NCLAT within time it meant that from the said date, within 30 days, Appeal should be filed and Appellant having filed within 30 days, it is within time.
When we look into the order of the Hon’ble Supreme Court passed on 26th July, 2023, last line of the order mentions “the period from the date of filing of the special leave petitions till today would stand excluded for the purposes of filing of the appeals.” Thus what was intended by the Hon’ble Supreme Court is that period during which SLP was pending before the Supreme Court, should be excluded. Hon’ble Supreme Court was not pronouncing on the limitation for filing the present appeal on that date since the Appeal was not even filed and when we read the above line of the Hon’ble Supreme Court it is clear that what was permitted was exclusion of the period during which the said SLP was pending. Even after exclusion of the said period, the present Appeal is filed beyond 15 days after expiry of the limitation and further clarification application which was filed by the Appellant has also been dismissed on 01.12.2023 by the Hon’ble Supreme Court.
We thus are of the view that delay in filing the Appeal cannot be condoned which is beyond condonable period as provided under Section 61(2) of the Code. The appeal has been filed beyond 15 days after expiry of limitation, the appeal cannot be entertained. The Appeal being barred by time is dismissed.