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Judgment
ORDER
[Per: Shreesha Merla, Member (Technical)]
IA No. 890/2023 in Company Appeal (AT) (CH) (Ins.) No. 293/2023 is filed by the Applicant / Appellant herein seeking condonation of delay of 3 days in preferring the Appeal on the ground that the Impugned Order was passed on 11/04/2023 and the Applicant had tried to apply for the Order copy on the very same date, but was informed by the Registry that the same could be applied after the Order was uploaded. It is submitted by the Learned Counsel for the Applicant / Appellant that the Applicant was checking regularly in the website for the Order Copy, which was uploaded only in the first week of May, 2023, immediately thereafter, the Certified Copies were applied for and made ready by the Registry on 04/04/2023. The Learned Counsel for the Appellant strenuously argued that any delay in receipt of the Certified Copy cannot cause any prejudice to Litigant’s right of Appeal and that as one month’s time provided for filing of Appeal ended on 03/06/2023 and the said Appeal was filed on 06/06/2023, there is only a delay of three days which is to be condoned.
The Learned Counsel appearing for the Respondent argued that the Order dated 11/04/2023, dismissing IA No. 474/2023 was uploaded as early as 19/04/2023 and drew our attention to the screenshot of the DMS Portal (Annexure R2) and that the submission regarding the Order being uploaded only on 03/05/2023, is erroneous. It is strenuously contended by the Learned Counsel that the expiry of the 30th day from the date of Impugned Order is 11/05/2023 and the expiry of the 45th day is 26/05/2023, whereas, the Appeal was filed on 06/06/2023 and therefore, is barred by limitation.
The relevant extract dealing with the issue of limitation under Section 61 of the IBC, 2016 of the Judgment of the Hon’ble Apex Court in the matter of ‘V. Nagarajan Vs. SKS Ispat Power Limited and Ors.’ reported in [(2022) 2 SCC 244], is reproduced as hereunder:-
“24.IBC is a complete code in itself and overrides any inconsistencies that may arise in the application of other laws. Section 61 IBC, begins with a non obstante provision— “notwithstanding anything to the contrary contained under the Companies Act, 2013” when prescribing the right of an aggrieved party to file an appeal before Nclat along within the stipulated period of limitation. The notable difference between Section 421(3) of the Companies Act and Section 61(2) IBC is in the absence of the words “from the date on which a copy of the order of the Tribunal is made available to the person aggrieved” in the latter. The absence of these words cannot be construed as a mere omission which can be supplemented with a right to a free copy under Section 420(3) of the Companies Act read with Rule 50 of the NCLT Rules for the purposes of reckoning limitation. This would ignore the context of IBC's provisions and the purpose of the legislation. …
33.The answer to the two issues set out in Section C of the judgment—(i) when will the clock for calculating the limitation period run for proceedings under IBC; and (ii) is the annexation of a certified copy mandatory for an appeal to Nclat against an order passed under IBC — must be based on a harmonious interpretation of the applicable legal regime, given that IBC is a Code in itself and has overriding effect. Sections 61(1) and (2) IBC consciously omit the requirement of limitation being computed from when the “order is made available to the aggrieved party”, in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of IBC, the aggrieved party is expected to exercise due diligence and apply for a certified copy upon pronouncement of the order it seeks to assail, in consonance with the requirements of Rule 22(2) of the Nclat Rules. Section 12(2) of the Limitation Act allows for an exclusion of the time requisite for obtaining a copy of the decree or order appealed against. It is not open to a person aggrieved by an order under IBC to await the receipt of a free certified copy under Section 420(3) of the Companies Act, 2013 read with Rule 50 of the NCLT Rules and prevent limitation from running. Accepting such a construction 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.”
Deciding the issue of limitation on the touchstone of ‘V. Nagarajan’ Judgment (Supra), this Tribunal thought it apposite and vide Order dated, 27/09/2023, had directed the Deputy Registrar, NCLT to furnish the information as to when IA No. 474/2023, the Impugned Order in the instant Company Appeal (AT) (CH) (Ins) No. 293/2023, was uploaded in the website portal of the NCLT and as to when the Appellant had applied for the Certified Copy and the date on which it was made ready and taken delivery of by the Appellant. The Deputy Registrar of NCLT had sent the following Report on 03/10/2023.
From the aforenoted Report, it is clear that the Order was uploaded on 19/04/2023 and that the Appellant had applied for the Certified Copy only on 04/05/2023, which was issued to the Counsel Mr. P. Gowthaman on the very same day. Therefore, even if we take into consideration, 45 days from the date of 19/04/2023, the time lapses on 02/06/2023 and this Appeal has been preferred on 06/06/2023, and is clearly barred by limitation.
Further the Hon’ble Supreme Court in the matter of ‘National Spot Exchange Limited Vs. Anil Kohli, Resolution Professional for Dunar Foods Limited’ reported in [(2022) 11 SCC 761] reiterated the position of law in the following manner :
“8.……..As per Section 61(2) of the IB Code, the appeal was required to be preferred within a period of thirty days. Therefore, the limitation period prescribed to prefer an appeal was 30 days. However, as per the proviso to Section 61(2) of the Code, the Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing the appeal, but such period shall not exceed 15 days. Therefore, the Appellate Tribunal has no jurisdiction at all to condone the delay exceeding 15 days from the period of 30 days, as contemplated under Section 61(2) of the IB Code.”
(Emphasis Supplied)
For all the foregoing reasons, this Appeal is barred by limitation and IA No. 890/2023 is dismissed as a corollary, Company Appeal (AT) (CH) (Ins) No. 293/2023 is also dismissed accordingly. No Order as to Costs. All connected pending Interlocutory Applications, if any, are closed.