Dhirajbhai Parbatbhai Lakkad vs Ramesh Kumar Totla

“15.

Section 61, sub-section (2) clearly provides that prescribed period for limitation is 30 days for filing an Appeal under sub-section (1) of Section 61. The proviso, which empowers the National Company Law Appellate Tribunal to allow an Appeal after expiry of the said period of 30 days, if there is sufficient cause for not filing the Appeal, but such period shall not exceed 15 days, is the period, which cannot be held to be prescribed period. The proviso uses the expression “after the expiry of the said period of thirty days”, which clearly means that prescribed period for limitation is only 30 days. The submission of learned Counsel for the Appellant is that 15 days period, which is condonable period is also a period, on which Rule 3 shall be applicable. Hence, if the 15 days period is falling on a day when Court is closed, the said benefit also needs to be extended. The submission advanced by learned Counsel for the Appellant is regarding interpretation of Rule 3. Rule 3 uses expression “Where a period is prescribed by the Act and these rules or under any other law or is fixed by the Appellate Tribunal for doing any act”. The prescribed period under the IBC under Section 61 is 30 days and the period of 15 days as provided under Section 61, subsection (2) proviso, cannot be said to be prescribed period for filing an Appeal. The power to condone the delay upto 15 days, given by proviso of sub-section (2) of Section 61, cannot be held to be a period prescribed as referred to in the 1st sentence of Rule 3. The import of the Rule can further be deciphered from expression “for doing any act”. For doing any act, is referable to first part of the Rule 3, thus, where a period is prescribed by the Act and these rules or under any other law or is fixed by the Appellate Tribunal for doing any act. The expression ‘for doing any act’ is referable to expression ‘fixed by the Appellate Tribunal for dong any act’. The condonable period of 15 days provided under Section 61, sub-section (2) cannot be considered to be covered by expression “for doing any act”. The power to condone the delay of 15 days is the power vested in the Appellate Tribunal and there is no applicability of Rule 3 with regard to power of condonation vested in this Appellate tribunal for condonation of delay of 15 days. The submission of the Appellant that by virtue of Rule 3, in event 15th day is falling on a day, on which the Tribunal is closed, the said period also needs to be extended has to be rejected.

24.

We have extracted the provision of Section 4 of the Limitation Act, which contains heading “Expiry of prescribed period when court is closed”. The provision provides that where the prescribed period for any suit or appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the date when the court re-opens. Rule 3 of the NCLAT Rules specifically provides that in computing the time, the day from which the said period is to be reckoned shall be excluded, and if the last day expires on a day when the office of the Appellate Tribunal is closed, that day and any succeeding day on which the Appellate Tribunal remains closed shall also be excluded. When we read Rule 3 of the NCLAT Rules, it clearly provides that when the last date expires on a day when the office of the Appellate Tribunal is closed, that day and any succeeding day on which the Appellate Tribunal remains closed shall also be excluded. The submission raised by the learned Counsel for the Respondent that when the last date of limitation, i.e. 30th day in the present case falls on a day when the Appellate Tribunal is closed, that cannot be excluded, is clearly contrary to the express provision of Rule 3. In the facts of the present case, the order was passed on 31.07.2024 and by giving benefit of two days for certified copy, 30th day when limitation was expiring shall be 01.09.2024. 31st August, 2024 and 1st September, 2024 being Saturday and Sunday, the Appeal could have been filed on 02.09.2024, which was the day when the Appellate Tribunal was to re-open. The judgment of Raj Kumar Banerjee vs. Supriyo Kumar Chaudhuri – (2022) SCC OnLine NCLAT 1592 was relied by the Appellant, which was a case where 30 days’ period expired on Saturday and Sunday, when the Court was closed. In paragraph 7, this Tribunal has noted Section 4 of the Limitation Act and Rule 3 of the NCLAT Rules and in paragraphs 7 to 10, held following:

“7.

Law is well settled that the period of limitation commences from the date when the Order is pronounced by the Tribunal. In this context, reference is made to the Judgement of Hon’ble Supreme Court in the matter of “V. Nagarajan Vs. SKS Ispat and Power Limited & Ors.” [(2022) 2 SCC 244]. We thus have to first find out that when 30 days period of limitation which is the last date for filing the Appeal, expires. Order having been passed on 07th April, 2022, 30 days period is to expire on 07th May, 2022. 07th and 08th May, 2022 are the dates being Saturday and Sunday and on these days, the Court was closed hence last date for filing the Appeal was 09th May, 2022 as 07th and 08th May, 2022 were holidays.

8.

Section 4 of the Limitation Act, 1963 as well as Rule 3 of the NCLAT Rules, 2016 provide that when the Court is closed, the Appeal can be filed when court reopens. Section 4 of the Limitation Act is as follows:

“4.

Expiry of prescribed period when Court is closed. – Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal, or application may be instituted, preferred or made on the date when the Court re-opens. Explanation.- A Court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.”

9.

Rule 3 of the NCLAT Rules, 2016 is as follows:

“3.

Computation of time period.- Where a period is prescribed by the Act and these rules or under any other law or is fixed by the Appellate Tribunal for doing any act, in computing the time, the day from which the said period is to be reckoned shall be excluded, and if the last day expires on a day when the office of the Appellate Tribunal is closed, that day and any succeeding day on which the Appellate Tribunal remains closed shall also be excluded”

10.

09th May, 2022 being the last day when 30 days period of limitation came to an end and the Appeal having been e-filed on 23rd May, 2022 whether the delay is 15 days or more, is question to be answered. 09th May, 2022 being the last date of limitation, 10th May, 2022 will be the first day from which date 15th Days period has to be reckoned. 15th Day from 10th May, 2022 will be 24th May, 2022, the Appeal being e-filed on 23rd May, 2022, the delay has to be treated to be filed within the period of 15 days from the expiry of the Limitation.”