National Company Law Appellate Tribunal
Johnson Lifts Pvt Ltd vs Tracks & Towers Infratech Pvt Ltd on 19 October, 2022
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
AT CHENNAI
(APPELLATE JURISDICTION)
Company Appeal (AT)(CH)(Ins) No.371/2022 & IA No.869/2022
(Under Section 61 of the Insolvency and Bankruptcy Code, 2016)
(Arising out of the Impugned Order dated 21.07.2022 in IA
No.295/2020 in CP(IB)No.510/9/HDB/2019
passed by the 'Adjudicating Authority' (National Company Law
Tribunal, Hyderabad Bench-II)
In the matter of:
Johnson Lifts Pvt Ltd ... Appellant
V
Tracks & Towers Infratech Pvt Ltd ... Respondent
Present :
For Appellant : Mr. A.R. Karunakaran, Advocate
ORDER
(VIRTUAL MODE) 19.10.2022: Heard Mr. A.R. Karunakaran, the Learned Counsel appearing for the 'Appellant' / 'Petitioner' / 'Operational Creditor' in the Comp. App. (AT)(CH)(Ins) No.371/2022.
2. According to the Learned Counsel for the 'Appellant' / 'Petitioner' (Operational Creditor), the 'Impugned Order' was passed on 21.07.2022, in IA No.295/2020 in CP(IB)No.510/9/HDB/2019 by the 'Adjudicating Authority' (National Company Law Tribunal, Hyderabad Bench-II) and a 'Certified Copy' of the said 'Order' was not despatched Company Appeal (AT)(CH)(Ins) No.371/2022 Page 1 of 7 to the 'Appellant' / 'Petitioner' / 'Operational Creditor' and the 'Certified Copy' of the 'Order' was made ready on 01.08.2022.
3. From the date of the 'Pronouncement' of the 'Impugned Order' dated 21.07.2022 in IA No.295/2020 in CP(IB)No.510/9/HDB/2019, the 'Appellant' / 'Petitioner' (Operational Creditor), is to prefer an 'Appeal' before the 'Appellate Tribunal', as an 'Aggrieved Person' within '30 Days', as per Section 61 (2) of the Insolvency & Bankruptcy Code, 2016. Thereafter, after the expiry of '30 Days' for filing an 'Appeal', if the 'Appellate Tribunal' is satisfied that there was 'sufficient cause' for the 'Appellant' in not filing the 'Appeal', then, within '15 Days', the said 'Appeal' is to be preferred by an 'Aggrieved Party'.
4. In an aggregate, 30 + 15 = '45 Days', is the 'Time Limit' provided for the 'Appellant' to prefer an 'Appeal' before the 'Appellate Tribunal', as against the 'Order' passed by the Adjudicating Authority' (National Company Law Tribunal, Hyderabad Bench-II). In the instant case, 'on hand', the 'Appellant' has preferred the present 'Appeal' on 09.09.2022 before this 'Appellate Tribunal'. The 'Impugned Order' was passed by the 'Adjudicating Authority' (National Company Law Tribunal, Company Appeal (AT)(CH)(Ins) No.371/2022 Page 2 of 7 Hyderabad Bench-II) in IA No.295/2020 in CP(IB)No.510/9/HDB/2019 on 21.07.2022, the '45 Days' period has ended on 05.09.2022.
5. The 'contention' advanced on behalf of the 'Appellant' is that the 'Certified Copy' of the 'Impugned Order' dated 21.07.2022 in IA No.295/2020 in CP(IB)No.510/9/HDB/2019, passed by the Adjudicating Authority' (National Company Law Tribunal, Hyderabad Bench-II) was not despatched to the 'Appellant' / 'Petitioner' (Operational Creditor) and that the Learned Counsel for the 'Appellant' had collected it on 01.08.2022 from the 'Office of the Registry' of the National Company Law Tribunal, Hyderabad Bench-II.
6. The 'Appellant' has filed the instant Comp. App. (AT)(CH)(Ins) No.371/2022 before this 'Tribunal' on 09.09.2022, assuming that only from 01.08.2022, the 'Limitation Period' is to commence and hence, the 'Appeal' is maintainable in 'Law', as contended by the Learned Counsel for the 'Appellant', in an emphatic manner.
7. Rule 150 of NCLT Rules, 2016 enjoins the 'Pronouncement of Orders' by the 'Tribunal'. Rule 150 (3) of the Rules, 2016 'speaks' of furnishing 'Certified Copy of every Order' passed by the 'Tribunal' to be given to the 'Parties'.
Company Appeal (AT)(CH)(Ins) No.371/2022 Page 3 of 7
8. More importantly, Section 421 (3) of the Companies Act, 2013 provides that 'Every Appeal' under Sub-Section (1) shall be filed within a period of forty-five days from the date on which a copy of the 'Order' of the 'Tribunal' is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed. However, a mere running of the eye of the 'ingredients of Section 61 (2) of the Insolvency & Bankruptcy Code, 2016, unerringly exhibits that the said 'Section' is conspicuously silent about the 'words', a copy of the order is made available to the person aggrieved, etc.
9. In this connection, it is out of place for this 'Tribunal', to make a pertinent mention of the 'Hon'ble Supreme Court Judgment' (Three Member Bench) between V. Nagarajan Versus SKS Ispat and Power Ltd. & Ors., wherein at 'Paragraph 21', it is observed as under: -
"The answer to the two issues set out in Section C of the judgement- (i) when will the clock for calculating the limitation period run for proceedings under the IBC; and (ii) is the annexation of a certified copy mandatory for an appeal to the NCLAT against an order passed under the IBC - must be based on a harmonious interpretation of the applicable legal regime, given that the IBC is a Code in itself and has overriding effect. Sections 61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the Company Appeal (AT)(CH)(Ins) No.371/2022 Page 4 of 7 "order is made available to the aggrieved party", in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of the 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 the 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 and prevent limitation from running. Accepting such a construction will upset the timely framework of the 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."
10. At this juncture, this 'Tribunal', aptly points out the 'Order' passed by this 'Appellate Tribunal' (Three Member Bench) Principal Bench, New Delhi in the matter of 'Exide Industries Ltd. V. Jitender Kumar Jain, Resolution Professional of Morakhia Copper & Alloys Pvt. Ltd.' (vide Company Appeal (AT) (Insolvency) No.1169 of 2022), wherein at Paragraph No.6, it is observed as under :- Company Appeal (AT)(CH)(Ins) No.371/2022 Page 5 of 7
"In view of the law laid down by the Hon'ble Supreme Court, the limitation for filing the Appeal begins when order was pronounced. The mere fact that Appellant received free certified copy of the Impugned Order on 27th July, 2022, the period of limitation shall not stop running after passing of the order/judgment. Our jurisdiction to condone the delay is only limited to 15 days under Section 61(2) proviso. There being delay of more than 15 days, the Delay Condonation Application cannot be allowed. Application is dismissed. Consequently, the Memo of Appeal is rejected."
11. Considering the fact that the instant Comp. App. (AT)(CH)(Ins) No.371/2022 was filed by the 'Appellant' before this 'Tribunal', on 09.09.2022 and this 'Tribunal', bearing in mind that the 'outer limit' of 45 Days (30 + 15) came to an end on 05.09.2022 and admittedly, as such, the instant Comp. App. (AT)(CH)(Ins) No.371/2022 is clearly 'barred by time'.
12. Furthermore, in the teeth of the decision of the Hon'ble Supreme Court in V. Nagarajan Versus SKS Ispat and Power Ltd. & Ors. reported in 2022 SCC at Page 244 and also in the light of the order dated 12.10.2022 in the Comp. App. (AT) (Insolvency) No.1169 of 2022 between Exide Industries Ltd. V. Jitender Kumar Jain, Resolution Professional of Morakhia Copper & Alloys Pvt. Ltd., passed by the Principal Bench, New Delhi, this 'Tribunal' comes to a 'resultant Company Appeal (AT)(CH)(Ins) No.371/2022 Page 6 of 7 conclusion' that the instant Comp. App. (AT)(CH)(Ins) No.371/2022 is liable to be 'dismissed', as 'not maintainable' and accordingly, the same is 'dismissed'. The connected IA No.869/2022 is Closed.
[Justice M. Venugopal] Member (Judicial) [Naresh Salecha] Member (Technical) ghk/tm Company Appeal (AT)(CH)(Ins) No.371/2022 Page 7 of 7