National Company Law Appellate Tribunal
Sanchit Kumar Agarwal vs Apg Logistics Private Limited on 9 January, 2023
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
AT CHENNAI
(APPELLATE JURISDICTION)
IA No. 1025 of 2022
in
Company Appeal (AT) (CH) (INS.) No. 418 of 2022
and
Company Appeal (AT) (CH) (INS.) No. 418 of 2022
(Under Section 61 of the Insolvency and Bankruptcy Code, 2016)
(Arising out of the `Order' dated 26.08.2022 in
CP/IB/113/CHE/2021, passed by the `Adjudicating Authority',
(`National Company Law Tribunal', Special Bench - I, Chennai)
In the matter of:
1. Sanket Kumar Agarwal
Residing at D-301,
Clover Majestic Towers,
Beach Road, Visakhapatnam,
Andhra Pradesh - 530003
2. Sanchit Kumar Agarwal
Residing at D-301,
Clover Majestic Towers,
Beach Road, Visakhapatnam,
Andhra Pradesh - 530003 ..... Petitioners / Appellants
v.
APG Logistics Private Limited
``Parents Vision'',
New No. 38, Old No. 50,
2nd Floor, Rajaji Salai
Chennai - 600001 ..... Respondent / Respondent
Present:
For Appellants : Mr. Bhanu Gupta and
Mr. Akshat Singh, Advocates
For Respondent : Mr. K. Gaurav Kumar,
Practising Company Secretary
IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 &
Comp. App (AT) (CH) (INS.) No. 418 of 2022
Page 1 of 31
ORDER
(Virtual Mode) Justice M. Venugopal, Member (Judicial):
Introduction:
IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022:
According to the Learned Counsel for the `Petitioners / Appellants', the instant Company Appeal (AT) (CH) (INS.) No. 418 of 2022, was filed on the `35th day', in terms of the `Computation of the Limitation Period', and not the `46th day', as averred by the `Respondent / Respondent'.
2. It is represented on behalf of the `Petitioners / Appellants', the `impugned order' dated 26.08.2022, was passed by the `Adjudicating Authority', (`National Company Law Tribunal', Special Bench - I, Chennai) in CP/IB/113/CHE/2021.
Appellants' Pleas:
3. The version of the Petitioners / Appellants is that, the Certified Copy of the `impugned order' dated 26.08.2022, refer to supra, was provided to the `Petitioners / Appellants', on 15.09.2022 and it was uploaded on the Website of the `Adjudicating Authority', on the same date, meaning thereby, that the grounds on which the `Application' came to be `dismissed', was known to the `Petitioners / Appellants', only on IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 2 of 31 15.09.2022, after securing the copy of the `impugned order', the `Petitioners / Appellants', sought a `legal opinion' and based on the opinion, the `Draft Appeal' with grounds was prepared and finalised, to assail the `impugned order'.
4. It is pointed out on behalf of the Petitioners / Appellants that the Advocate for the Appellants, was not available during the `Dussera Holidays', due to which, there was no substantial work done, during a period of five days. Also that, the `Petitioners / Appellants', and their `Advocates', being based out of Delhi, took additional measures to draft the `Appeal', and filed within the prescribed time limit of 30 days, as per the I & B Code, 2016. In this regard, the `Application' for securing the Certified Copy was sent from Delhi to Chennai on 02.09.2022, which was received only 05.09.2022.
5. On behalf of the Petitioners / Appellants, it is brought to the notice of this `Tribunal' that the instant `Appeal', came to filed on 10.10.2022, together with an `Application', seeking to `condone the delay of five days', as the prescribed time period of 30 days for filing an `Appeal', came to an end on 05.10.2022, after accounting for the ten days exclusion period.
IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 3 of 31
6. The Learned Counsel for the Petitioners / Appellants, adverts to the `Table of Computation', for the period of `Limitation', and the same runs as under:
Date Period of Event Statutory
Limitation Provision
26.08.2022 From 26.08.2022 to Date of Section 12(1) and
05.09.2022 = 10 Days Pronouncement 12(2) of Limitation
(Excluding the date of of Order Act, 1963 state
Pronouncement of that date of
Order i.e. 26.08.2022) Pronouncement
of Order is to be
excluded from
computation of
period of limitation.
05.09.2022 From 05.09.2022 to Date of Application Section 12(2)
15.09.2022 = Period of for obtaining Limitation Act,
exclusion of 10 days Certified Copy 1963 states that the
from computation of of Order day on which
limitation on account of the judgment was
time taken by the Court pronounced and the
to provide the certified time requisite for
copy of the order from obtaining a copy of
the date of application. the order appealed
from shall be
excluded.
15.09.2022 From 15.09.2022 to Date on which
10.10.2022 = 25 Days impugned order
was uploaded and
on the same date,
certified copy was
provided to the
Applicant
10.10.2022 Total Period of Date of filing the
Limitation = 10 Days + company appeal
25 Days = 35 Days
7. The submission of the Petitioners / Appellants is that, the period beginning from 05.09.2022, Viz. the date of Application for Certified IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 4 of 31 Copy of the Order to 15.09.2022, Viz. the date on which, the Certified Copy of the Order was provided to the `Petitioners / Appellants', is to be excluded, from the `Period of Limitation', in view of Section 12 (2) of the Limitation Act, 1963, and as per decision of the Hon'ble Supreme Court of India in the matter of V. Nagarajan v. SKS Ispat and Power Limited and Ors., (vide Civil Appeal No.3327 of 2020 dated 22.10.2021).
8. The Learned Counsel for the Petitioners/Appellants contends that the placing of reliance by the Respondent, in respect of the decisions, the same are inapplicable, because in those matters, wherein, the Appellants had either (a) not applied for a certified copy at all (as was the case in ``Nagarajan'' (supra) (b) or applied for a certified copy of order well after the statutory period of limitation of 30 days had ended (c) or had also excluded the period before making the application for a certified copy of the impugned order thereof.
9. The Learned Counsel for the `Petitioners/Appellants', while rounding up, prays for `allowing', the IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022, by `condoning the delay of 5 days, in preferring the instant `Appeal'.
IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 5 of 31 Appellants' Citations:
10. The Learned Counsel for the Petitioners / Appellants, refers to Paragraph 23 of the decision of the Hon'ble Supreme Court of India in V. Nagarajan's case (vide Civil Appeal No.3327 of 2020 dated 22.10.2021), wherein, it is observed as under:
23. ``..... The period of limitation for filing an appeal under Section 61(1) against the order of the NCLT dated 31 December 2019, expired on 30 January 2020 in view of the thirty-day period prescribed under Section 61(2). Any scope for a condonation of delay expired on 14 February 2020, in view of the outer limit of fifteen days prescribed under the proviso to Section 61(2).....''
11. The Learned Counsel for the Petitioners / Appellants, cites the Judgement dated 22.03.2021 of the Hon'ble Supreme Court of India in the matter of Sesh Nath Singh & Anr. V. Baidyabati Sheoraphuli Co- operative Bank Ltd. & Anr. (vide Civil Appeal No. 9198 of 2019, wherein, at Paragraphs 60 and 61, it is observed as under:
60. ``In Ramlal Motilal and Chhotelal v. Rewa Coalfields Ltd. [AIR 1962 at Page 361], this Court affirmed the view taken by Madras High Court in Krishna v. Chattappan [1890 I.L.R. 13 Mad. 269] and held that Section 5 of the Limitation Act gives the Courts a discretion, which is to be exercised in the way in which judicial power and discretion ought to be exercised, upon principles which are well understood. The expression 'sufficient cause' should be construed liberally to advance substantial justice, as held by this Court, inter alia, in Shakuntla Devi Jain vs. Kuntal Kumar [AIR IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 6 of 31 1969 SC 575] and in State of West Bengal v. Administrator, Howrah Municipality and Others [AIR 1972 at Page 749].
61. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause.
Whether the explanation furnished for the delay would constitute 'sufficient cause' or not would dependent upon facts of each case. There cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the applicant/appellant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bona fides can be imputed to the defaulting party.'' [emphasis supplied] Respondent's Contentions:
12. The Learned Practising Company Secretary for the Respondent, submits that the instant Comp. App (AT) (CH) (INS.) No. 418 of 2022, was filed by the `Appellants' on the 46 th day, from the date of passing of the `impugned order' dated 26.08.2022, passed by the `Adjudicating Authority' (`National Company Law Tribunal', Special Bench - I, Chennai) in CP/IB/113/CHE/2021, which `exceeds the 30 days' permissible period', under the I & B Code, 2016, and further `period of 15 days' (under `sufficient cause'), and hence, the instant `Appeal', is `barred by time'.
13. According to the Learned Practising Company Secretary for the Respondent, it is for the `Litigants', to `pursue their remedy', in a `timely IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 7 of 31 manner', and that the I & B Code, 2016, is a special `Code', `overriding' other laws.
14. It is the plea of the Respondent that the Insolvency and Bankruptcy Code, 2016, shall `prevail' over the `Limitation Act, 1963', and further that Section 12 (2) of the Limitation Act, 1963, cannot `override' the `provisions of the I & B Code, 2016'. Also that, the Commencement Date for calculating the time period shall begin from 26.08.2022, the `date of passing of the `impugned order', by the `Adjudicating Authority' (`Tribunal').
15. The Learned PCS for the Respondent points out that the `impugned order', was passed by the `Adjudicating Authority', in CP/IB/113/CHE/2021 on 26.08.2022, and that, the `Appeal', before this `Tribunal', was filed through E-Portal on 10.10.2022 (46th day) and the `completion of 30 days period from the date of Pronouncement of Impugned Order dated 26.08.2022, was on 24.09.2022. As a matter of fact, the 45th day for Filing the `Appeal' (30 + 15 days with Condonation), was on 09.10.2022.
Respondent's Decisions:
16. The Learned PCS for the Respondent points out that the Judgment of the Hon'ble Supreme Court of India in V. Nagarajan v. SKS Ispat and IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 8 of 31 Power Limited and Ors., in Civil Appeal No. 3327 of 2020 dated 22.10.2021, wherein, at Paragraph 20, it is observed as under:
20. ``The appellant had argued that the order of the NCLAT notes that the NCLT registry had objected to the appeal in regard to limitation, to which the appellant had filed a reply stating that the limitation period would begin from the date of the uploading of the order, which was 12 March 2020. The appellant submitted that the suo motu order of this Court dated 23 March 2020, taking retrospective effect from 15 March 2020, made under Article 142 of the Constitution, extended the limitation until further orders, which renders the appeal filed on 8 June 2020 within limitation. However it is important to note that this Court had only extended the period of limitation applicable in the proceedings, only in cases where such period had not ended before 15 March 2020. In this case, owing to the specific language of Section 61(1) and 61(2), it is evident that limitation commenced once the order was pronounced and the time taken by the Court to provide the appellant with a certified copy would have been excluded, as clarified in Section 12(2) of the Limitation Act, if the appellant had applied for a certified copy within the prescribed period of limitation under Section 61(2) of the IBC. The construction of the law does not import the absurdity the appellant alleges of an impossible act of filing an appeal against an order which was uploaded on 12 March 2020. However, the mandate of the law is to impose an obligation on the appellant to apply for a certified copy once the order was pronounced by the NCLT on 31 December 2019, by virtue of Section 61(2) of the IBC read with Rule 22(2) of the NCLAT Rules.
In the event the appellant was correct in his assertion that a correct copy of the order was not available until 20 March 2020, the appellant would not have received a certified copy in spite of the application till such date and accordingly received the benefit of the suo motu order of this Court which came into effect on 15 March 2020. However, in the absence of an application for a certified copy, the appeal was barred by limitation much prior to the suo motu direction of this court, even after factoring in a IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 9 of 31 permissible fifteen days of condonation under Section 61(2). The Court is not empowered to condone delays beyond statutory prescriptions in special statutes containing a provision for limitation [Union of India v. Popular Construction Co., (2001) 8 SCC 470.''
17. Also, the Learned PCS for the Respondent, adverts to the Judgment of the Hon'ble Supreme Court in V. Nagarajan's case (Vide Civil Appeal No. 3327 of 2020 dated 22.10.2021), wherein, at Paragraph 10, it is observed as under:
10. ``For determining the present appeal, the question of limitation for filing appeals would have to be answered by construing the provisions of the IBC and the Limitation Act, with the former enactment having an overriding effect. This position has also been adopted by a three judge bench of this Court in Kalpraj Dharamshi v. Kotak Investment Advisors Ltd [2021 SCC OnLine SC 204], in considering the applicability of Section 14 of the Limitation Act to the reckoning of limitation for an appeal filed under Section 61(1) of the IBC.''
18. The Learned PCS for the Respondent falls back upon the Judgment of the Hon'ble Supreme Court of India, in Kalpraj Dharamshi & Anr. V. Kotak Investment Advisors Limited & Anr., (Vide Civil Appeal Nos. 2943-2944 of 2020 dated 10.03.2021), wherein at Paragraphs 39 and 40, it is observed as under:
39. ``Since there is a period different from the one which is prescribed by the Schedule to the Limitation Act, the limitation for an appeal would be governed by Section 61 of the I & B Code, which is a special statute. As such, an appeal will have to be IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 10 of 31 preferred within a period of thirty days from the date on which the order was passed by NCLT. However, if NCLAT is satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days, it may allow an appeal to be filed within a further period of fifteen days. As such, the normal period of limitation prescribed under the I&B Code is thirty days, with a provision for allowing the filing of an appeal within a further period of fifteen days, if NCLAT is satisfied, that there was a sufficient cause for not filing the appeal within thirty days.
40. In the present case, the dates are not in dispute. The judgment of NCLT is dated 28.11.2019. As such, as per Section 61(2) of the I&B Code, the appeal was required to be filed on or prior to 28.12.2019. The appeal could have been filed within a further period of fifteen days, if NCLAT was satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days. As such, the said period would come to an end on 12.1.2020.
The certified copy of the impugned judgment of NCLT was made available on 18.12.2019. If the allowance for the said period is granted, the appeal should have been preferred on or prior to 2.2.2020. However, in the present case, the appeal is filed on 18.2.2020. It is also not in dispute, that immediately after the order was passed on 28.11.2019 by NCLT, KIAL preferred a writ petition being Writ Petition (L) No. 3621 of 2019 before the Division Bench of the Bombay High Court on 11.12.2019. The said writ petition came to be dismissed on 28.1.2020 on the ground, that KIAL had an alternate and efficacious remedy available under Section 61 of the I&B Code and as such, it was relegated to the alternate remedy available in law.''
19. The Learned PCS for the Respondent, cites the Order dated 29.04.2022 of the Hon'ble Supreme Court of India, in Safire Technologies Pvt. Ltd. v. Regional Provident Fund Commissioner & Anr. (vide Civil Appeal No. 2212 of 2021), wherein, it is observed as under:
IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 11 of 31 ``Corporate Insolvency Resolution Process ('CIRP') of Maruti Koatsu Cylinders Limited was initiated before National Company Law Tribunal ('NCLT') Ahmedabad on 26.04.2018. The resolution plan was approved by the Committee of Creditors ('CoC') on 04.04.2019 and was also approved by the NCLT on 22.10.2019.
Thereafter, the Respondent No.1, Regional Provident Fund Commissioner filed a claim before the Resolution Professional on 09.10.2019 regarding the provident fund dues which was not considered. An appeal before the National Company Law Appellate Tribunal ('NCLAT') was filed on 14.12.2020 by Respondent No. 1 against the order dated 22.10.2019 approving the resolution plan. By an Order dated 19.01.2021, notice was issued by the NCLAT in this appeal. The appellant is aggrieved by the issuance of notice by NCLAT in the appeal filed by Respondent No.1, being contrary to Section 61(2) of the Insolvency and Bankruptcy Code ('IBC'), and, therefore, this appeal.
Section 61(2) of the IBC reads as under:
"61. Appeals and Appellate Authority.
(1) ....
(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 appellant contends that an appeal against an order passed by the NCLT has to be filed within 45 days from the date of passing of the order. In support of the said contention, the appellant relied upon the judgment of this Court in Civil Appeal Nos.2943-2944 of 2020 etc. dated IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 12 of 31 10.03.2021 titled Kalpraj Dharamshi & Anr. vs. Kotak Investment Advisors Ltd. & Anr.
Learned counsel appearing for the respondent stated that period of limitation would start from the date of knowledge. Though, the claim was filed by Respondent No.1 before the Resolution Professional, it was not a party before the NCLT which passed the order approving the resolution plan. According to the learned counsel for 1 st Respondent, he came to know about the order passed by the NCLT much later. Support was sought from a judgment of this Court in Raja Harish Chandra Raj Singh vs. Dy. Land Acquisition Officer [1962 (1) SCR 676] for submitting that provisions relating to limitation have to be given a liberal construction.
The judgment that is relied upon by the Respondent No. 1 relates to Section 18 of the Land Acquisition Act. However, we are concerned with the limitation prescribed by Section 61 of the IBC which fell for consideration of this Court in Kalpraj Dharamshi (supra). In the said judgment, it was categorically held by this Court that an appeal against the order of NCLT shall be preferred within a period of 30 days from the date on which the order was passed by the NCLT. The Appellate Tribunal has the power to extend the period of limitation by another 15 days.
In view of the aforesaid judgment, we are of the considered view that the Appellate Tribunal committed an error in issuing notice in an appeal that was filed by Respondent No.1 with delay of 388 days.
The appeal is, accordingly, allowed. Pending application(s), if any, shall stand disposed of.''
20. The Learned PCS for the Respondent, relies on the Order of the Hon'ble High Court of Delhi dated 10.09.2014, in United Insurance Co. IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 13 of 31 Ltd. v. Manish Kumar Gupta in O.M.P. 1127 of 2013, wherein, at Paragraphs 16 to 21, it is observed as under:
16. `` Relying on the findings in Shree Ram Construction Co.'case (supra), the division bench of this court in case 2012 (3) ARBLR349 (Delhi) titled as Delhi Transco Ltd. & Anr. Vs. Hythro Engineers Pvt.Ltd. has observed as under:
9. ..... ..... .... If the delay in re-filing is such as to go well and substantially beyond the period of three months and thirty days, the matter would require a closer scrutiny and adoption of more stringent norms while considering the application for condonation of delay in re-filing, and the Court would conduct a deeper scrutiny in the matter. The leniency shown and the liberal approach adopted, otherwise, by the Courts in matter of condonation of delay in other cases would, in such cases, not be adopted, as the adoption of such an approach by the Court would defeat the statutory scheme contained in the Act which prescribes an outer limit of time within which the objections could be preferred. It cannot be that what a petitioner is not entitled to do in the first instance, i.e. to file objection to an award beyond the period of three months & thirty days under any circumstance, he can be permitted to do merely because he may have filed the objections initially within the period of three months, or within a period of three months plus thirty days, and where the re-filing takes place much after the expiry of the period of three months & thirty days and, that too, without any real justifiable cause or reason.
17. From the above discussion, it is apparent that it is for the petitioner to explain the reasons of delay of each day in re-filing. A casual approach is certainly not tolerable especially when the petitioner is having the advantage of a legal cell to advise him on the legal positions. There is no dispute to the fact that the petitioner is maintaining a legal cell wherein several intelligent minds in this field, render and provide the expert opinions to petitioner. In this IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 14 of 31 background it cannot be presumed that the petitioners were not aware of the stringent law dealing with matter of filing/re-filing of petition under Section 34 of the Act. In this background, it certainly is not expected that a petitioner on refiling would file it with as many as 13 defects. Some of them are of primary nature like not mentioning the provisions of law on the interim application, asking for fair typing of dim documents, not mentioning of age of the person in the affidavit who had filed the affidavit, not inserting the paragraphs of pecuniary and territorial jurisdiction in the petition, not mentioning the award amount in the plaint and non-payment of the court fee accordingly etc.
18. It is also not expected that the petitioner should take removal of such defects for so long that is from 17.08.2013 to 12.11.2013.
Initially when petition was filed on 17.8.2013, the defects were removed within 30 days that is by 2.9.2013 and petition was re- filed on 3.9.2013. On that day registry raised 13 objections which the petitioner removed only by 8.11.2013 that is after more than 60 days. On these facts the registry has shown the filing date as 12.11.2013. The question is if the objections were not removed within the given time by registry, but is done beyond the period of 30 days of raising the objections in such situation should this refiling be considered as fresh institution? The answer lies in Part G of Delhi High Court Rules which relates to the proceedings in the High Court of Delhi and Chapter I, Part A (a) deals with Judicial business relating to presentation and reception of Appeals, Petitions etc. and Rule 5 reads as under:
5. Amendment-- The Deputy Registrar Assistant Registrar, Incharge of the Filing counter, may specify the objections (a copy of which will be kept for the Court Record) and return for amendment and re- filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memorandum of appeal, for the reason specified in Order XLI, Rule 3, Civil Procedure Code.
IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 15 of 31 (2) If the memorandum of appeal is not taken back for amendment within the time allowed by the Deputy Registrar, Asstt. Registrar, in charge of the filing Counter under sub- rule (1), it shall be registered and listed before the Court for its dismissal for non-prosecution.
(3) If the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar, Asstt. Registrar in charge of the Filing Counter, under sub- rule (1) it shall be considered as fresh institution. Note--The provisions contained in Rule 5(1), 5(2) and 5(3) shall mutatis mutandis apply to all matters, whether civil or criminal.]....
19. It thus empowers the Deputy Registrar, Assistant Registrar, Incharge of the Filing Counter to return the appeal, petition etc. with objections requiring its removal within a time not exceeding 7 days at a time and 30 days in the aggregate. Sub rule (3) specifically and categorically stipulates that if the refiling is done beyond the time allowed under Sub rule 1, it "Shall be considered as fresh institution". The expression used is 'Shall'.
20. This court in Delhi Transco Ltd.'s case (supra) has clearly held that such filing shall be considered first filing. Court has observed as under:
11. .... ..... .... Moreover, there is no answer with the appellant to the reliance placed by the learned Single Judge on Rule 5, Chapter "I", Part A of Vol.5 of High Court Rules and Orders, according to which, the objections should have been re-filed within a time not exceeding 7 days at a time, and 30 days in aggregate to be fixed by the Deputy Registrar/Assistant Registrar, Incharge of Filing Counter.
Rule 5 (3) read with the note also makes it abundantly clear that in case the petition is filed beyond the time allowed by the Deputy Registrar/Assistant Registrar, Incharge of Filing Counter under Sub-Rule 1, it shall be considered as a fresh institution. .... .....
IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 16 of 31
21. In view of the above, it is apparent that the court cannot take leniency in condoning the delay in refiling the petition after removing the objections when objections were removed after 30 days of the filing. The aforesaid rule clearly stipulates that it shall be considered as fresh filing. Even otherwise, the petitioner has miserably failed to explain the delay in refiling. No explanation has come forward except that there were vacations of Dussehra and the counsel had gone to his native village which certainly is not the sufficient ground for condonation of delay under Section 34 of the Act wherein as observed by the Supreme Court of India in Popular Construction' case (supra), "the endeavour of the court should not be to make the statutory provisions redundant or otiose".''
21. The Learned PCS for the Respondent, adverts to the `Order' of the Hon'ble High Court of Rajasthan dated 21.02.2019, in Jagmal Singh v. State of Rajasthan, wherein, it is observed as under:
``The appeal is reported to be barred by limitation for 11 days. The only reason assigned for condonation of delay in filing the appeal is that due to ongoing vacation of 'Navratri', and nonavailability of counsel in Jodhpur, appeal could not give instructions for filing of appeal.
In our considered opinion, the reason assigned for not filing the appeal within limitation, can hardly be considered a sufficient cause and, therefore, the application under Section 5 of the Limitation Act seeking condonation of delay, deserves to be rejected.
However, in the interest of justice, we have examined the matter on merits as well. We are of the considered opinion that the relief sought by the writ-petitioner/appellant regarding rectification in the inventory after inordinate delay of 54 years, has rightly been dismissed by learned Single Judge on the ground of inordinate delay and laches.'' IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 17 of 31
22. The Learned PCS for the Respondent cites the Judgment of this `Tribunal' (Three Member Bench), between Exide Industries Ltd. v. Jitender Kumar Jain in Comp. App (AT) INS. No. 1169 of 2022 dated 12.10.2022, wherein at Paragraph 6, it is observed as under:
6. ``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.''
23. On behalf of the Respondent, a reference is made to the `Order' of this `Tribunal', dated 02.09.2022 in Comp. App (AT) (CH) (INS.) No. 209 of 2022, between Valency International Pte Ltd. v. Vasudevan & 2 Ors., wherein, it is observed as under:
``At this juncture, this 'Tribunal' pertinently points out that Section 61 of the Insolvency & Bankruptcy Code, 2016 is a 'Hard Taskmaster'. The 'time limit' and the 'procedural wrangle' cannot be allowed to be 'shaked' or 'shackled' with by a 'Litigant'. No doubt, the 'Appellate Tribunal' at the time of dealing with the 'Condone Delay Application' is not required to go into the merits of the case, and in short, merits of the case should not an issue in an Application filed by the concerned Applicant for condoning the delay in preferring such Application. Suffice it for this 'Tribunal' to make a mention that the Provisions of the Insolvency & Bankruptcy Code, 2016 and the 'Regulations' made thereunder, are required to IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 18 of 31 be adhered to by a Stakeholder / Litigant / Applicant in a scrupulous manner and that too in true 'Letter and Spirit'.
Admittedly, in the instant case, the present Comp App (AT)(CH)(Ins) No.209/2022 is preferred beyond 45 days (30 + 15) period, prescribed under the Insolvency & Bankruptcy Code, 2016.
In reality, there has occasioned a delay of '1027 days' in preferring the 'instant Comp App (AT)(CH)(Ins) No.209/2022', which in the considered opinion of this 'Tribunal' is not to be condoned, as there is no power enjoined upon the 'Appellate Authority' (National Company Law Appellate Tribunal) to condone the delay beyond the 'prescribed period', enunciated under the Insolvency & Bankruptcy Code, 2016.
Looking at from any angle, and also keeping in mind the decision of the Hon'ble Supreme Court in V. Nagarajan V SKS Ispat and Power Ltd.& Ors., reported in (2022) 2 SCC at Page 244 Spl. Pages 257 and 265, this 'Tribunal' holds that IA/460/2022 seeking to condone the delay of '1027 days' in preferring the 'instant Comp App (AT)(CH)(Ins) No.209/2022' is 'devoid of merits' and it fails.
In fine, IA/460/2022 in Comp App (AT)(CH)(Ins) No.209/2022 is dismissed. No Costs.''
24. It is projected on the side of the Respondent, that the Judgment of this `Tribunal', dt. 01.12.2021 (Three Member Bench), in Comp. App (AT) (INS.) No. 918 / 2021, etc., between M/s. Hasmukh N. Shah & Associates V. M/s. Victoria Entertainment Pvt. Ltd., wherein, at Paragraphs 31 and 32, it is observed as under:
31. ``In the present case, the case of the Appellant is that he applied certified copy of the order twice firstly on 21.01.2019 and secondly on 29.07.2021. Applying the ratio of the judgment of the "Sagufa Ahmed", in the present case, at best Appellant can claim that period of limitation did IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 19 of 31 not start running till he applied for certified copy of the order i.e. till 21.01.2019.
The Appeals have been filed on the strength of certified copy of the judgment which was applied on 29.07.2021 which certified copy of the Application is claimed by the Appellant after more than three years of the delivery of the judgment whereas in Sagufa Ahmed's case certified copy of the judgment was applied within 27 days from the delivery of judgment. We are of the view the Appellant is not entitled to rely on the judgment of Sagufa Ahmed's case in the facts of the present case. In any view of the matter, Appeals have been filed after expiry of limitation. The Appeals are barred by time and cannot be entertained. The three Judge Bench judgement of the Hon'ble Supreme Court in V. Nagarajan case (supra) fully covers the question which are up for consideration before us. In view of the law laid down by the Hon'ble Supreme Court in V. Nagarajan's case, the submissions raised by the Learned Counsel for the Appellant deserves to be rejected.
32. All the Appeals are dismissed accordingly as barred by time.''
25. The Learned PCS for the Respondent, refers to the Judgment of this `Tribunal', dated 04.01.2022 (Three Member Bench), in Comp. App (AT) (INS.) No. 527 of 2021, between Central Board of Trustee, Employees Provident Fund Organisation, through the Regional PF Commissioner, Kolhapur - 416003 v. Shri Dutta India Pvt. Ltd., Kolkata
- 700001, wherein at Paragraphs 23 to 25, it is observed as under:
23. ``Learned Counsel for the Appellant has placed reliance on the judgment of the Hon'ble Supreme Court in "Sesh Nath Singh and Ors. vs. Baidyabati Sheoraphuli Co-operative Bank Ltd. & Ors.-
Civil Appeal No. 9198 of 2019 (decided on 22.03.2021)". In the above case, an Application was filed under Section 7 of the 'I&B Code' which was admitted by the Adjudicating Authority. In the above case, it was found that right to sue accrued on 31.03.2013 IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 20 of 31 when the account of the Corporate Debtor was declared NPA. The Financial Creditor has initiated proceeding under Section 13(2) of the SARFAESI Act, 2002 by issuing a notice on 18.01.2014. The proceedings under Section 13(2) were stayed by the High Court by its order dated 24.07.2017 when it passed interim order. High Court was prima facie of the view that Financial Creditor being a Co-operative Bank, it could not invoke the provisions of the SARFAESI Act, 2002. In the above context, Section 14 of the Limitation Act, 1963 came for consideration before the Hon'ble Supreme Court. The Hon'ble Supreme Court held that benefit of proceedings under the SARFAESI Act, 2002 is to be given to the Financial Creditor under Section 14 since prima facie the proceedings before the SARFAESI Act, 2002 were suffering from defect of jurisdiction. In Paragraphs 70, 84, 85 & 86, following was laid down:-
``70. Section 14 (2) of the Limitation Act provides that in computing the period of limitation for any application, the time during which the petitioner had been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance, or of appeal or revision, against the same party, for the same relief, shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of like nature, is unable to entertain it. The conditions for exclusion are that the earlier proceedings should have been for the same relief, the proceedings should have been prosecuted diligently and in good faith and the proceedings should have been prosecuted in a forum which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it. xxxx xxxx xxxx
84. To sum up, Section 14 excludes the time spent in proceeding in a wrong forum, which is unable to entertain the proceedings for want of jurisdiction, or other such cause.
Where such proceedings have ended, the outer limit to claim IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 21 of 31 exclusion under Section 14 would be the date on which the proceedings ended.
85. In the instant case, the proceedings under the SARFAESI Act may not have formally been terminated. The proceedings have however been stayed by the High Court by an interim order, on the prima facie satisfaction that the proceedings initiated by the financial creditor, which is a cooperative bank, was without jurisdiction. The writ petition filed by the Corporate Debtor was not disposed of even after almost four years. The carriage of proceedings was with the Corporate Debtor. The interim order was still in force, when proceedings under Section 7 of the IBC were initiated, as a result of which the Financial Creditor was unable to proceed further under the SARFAESI Act.
86. In the instant case, even if it is assumed that the right to sue accrued on 31.3.2013 when the account of Corporate Debtor was declared NPA, the financial creditor initiated proceedings under SARFAESI Act on 18th January 2014, that is the date on which notice under Section 13(2) was issued, proceeded with the same, and even took possession of the assets, until the entire proceedings were stayed by the High Court by its order dated 24th July 2017. The proceedings under Section 7 of the IBC were initiated on 10th July 2018.
87. In our view, since the proceedings in the High Court were still pending on the date of filing of the application under Section 7 of the IBC in the NCLT, the entire period after the initiation of proceedings under the SARFAESI Act could be excluded. If the period from the date of institution of the proceedings under the SARFAESI Act till the date of filing of the application under Section 7 of the IBC in the NCLT is excluded, the application in the NCLT is well within the limitation of three years. Even if the period between the date of the notice under Section 13(2) and date of the interim IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 22 of 31 order of the High Court staying the proceedings under the SARFAESI Act, on the prima facie ground of want of jurisdiction is excluded, the proceedings under Section 7 of IBC are still within limitation of three years."
24. The above judgment does not come to any aid of the Appellant since the benefit under Section 14(2) of the Limitation Act was given in the above case on the prima facie ground that SARFAESI proceedings is without jurisdiction and which proceedings were already stayed by the High Court by the interim order on the aforesaid ground. As noted above, proceedings of Writ Petition before the Bombay High Court does not suffer from any defect of jurisdiction, hence, judgment of the Hon'ble Supreme Court in "Sesh Nath Singh and Ors." (supra) does not come to any aid of the Appellant.
25. In view of the foregoing discussion, we are of the view that this Appeal against the judgment dated 11.11.2019 of the Adjudicating Authority filed in this Tribunal on 17.06.2021 is clearly barred by time and no case has been made out to claim benefit of Sections 5 and 14(2) of the Limitation Act to the Appellant. The Appeal is dismissed as barred by time.''
26. On behalf of the Respondent, a reliance is placed on the `Order' of this `Tribunal', in Comp. App (AT) (CH) (INS.) No. 337 of 2022 dated 24.11.2022, between M.K. Resley, Kerala and 7 Ors. v. Union Bank of India, Erattupetta Branch, Kottayam - 686121 and 2 Ors., wherein at Paragraph 5, it is observed as under:
5. ``It cannot be forgotten that the Hon'ble High Court of Kerala, had permitted the 'Appellants' in W.A. No.537/2022, to prefer an 'Appeal', before this 'Appellate Tribunal', within 'Two Weeks', from the date of the 'Judgment' (dated 22.06.2022) and going by IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 23 of 31 the 'tenor and spirit' of the 'Judgment' of the Hon'ble High Court of Kerala in W.A. No.537/2022 dated 22.06.2022, it is quite latently and patently evident that the 'Last Date' for preferring the instant Comp. App. (AT) (CH) (Ins) No.337/2022, was to be 'on or before 05.07.2022'. However, the 'E-Portal' of this `Tribunal', shows that the instant Comp. App. (AT) (CH) (Ins) No.337/2022 was filed on '06-07-2022 22:07:946'. As such, there is a 'delay' of 'One Day', in preferring the instant Comp. App. (AT) (CH) (Ins) No.337/2022, before this 'Appellate Tribunal'. Hence, this 'Tribunal', comes to a consequent conclusion that the 'Appellants' have preferred the instant Comp. App. (AT) (CH) (Ins) No.337/2022, with a further delay of 'One Day', by not adhering to the 'tenor and spirit' of the 'Judgment' of the Hon'ble High Court of Kerala in W.A. No.537/2022, in a meticulous and scrupulous manner.
Viewed in the above perspective, the filing of the instant Comp. App. (AT) (CH) (Ins) No.337/2022 by the 'Appellants', 'per se', is beyond the 'prescribed time limit', granted by the Hon'ble High Court of Kerala in its 'Judgment' in WA/537/2022 dated 22.06.2022 and, therefore, the said Comp. App. (AT) (CH) (Ins) No.337/2022, is not entertained by this 'Tribunal' and the same is 'rejected'. No Costs. The connected IA/907/2022 (For 'Urgent Listing') IA/758/2022 (For 'Stay') and IA/759/2022 (For 'Exemption') are Closed.''
27. On behalf of the Respondent, a reference is made to the `Order' dated 19.10.2022 of this `Tribunal', in Comp App AT CH INS.370 of 2022, between Johnson Lifts Pvt. Ltd. v. Tracks and Towers Infratech Pvt. Ltd., wherein, at Paragraphs 7 and 8, it is observed as under:
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'.
IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 24 of 31
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.''
28. The Learned PCS for the Respondent, relies on the `Order' of this `Tribunal', dated 04.11.2022 in IA No. 3349 of 2022 in Comp. App AT INS No. 1124 of 2022, between Isolux Corsan India Engineering & Constructions Pvt. Ltd. through its Liquidator, CA Rajeev Bansal v. Shailesh Verma, Erstwhile Resolution Professional of South East U.P. Power Transmission Company Ltd. & 2 Ors., wherein, at Paragraph 22, it is observed as under:
22. ``The jurisdiction of this Tribunal to condone the delay is of only 15 days in addition to period of limitation of 30 days. The delay in filing the Appeal is beyond 15 days after expiring of the limitation, we are unable to condone the delay in filing the Appeal.
In result, I.A. No. 3349 of 2022 is dismissed. Consequently, the Memo of Appeal stands rejected.''
29. The Learned PCS for the Respondent seeks in aid of the `Order' of this `Tribunal', dated 26.08.2022 in IA No. 2431 of 2021 in Comp. App (AT) (INS.) No. 877 of 2022 (Three Member Bench), between 44 Noida IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 25 of 31 Infratech (Two) Pvt. Ltd. v. Enforcement Directorate Kolkata Zone Office & Ors., wherein, at Paragraph 13, it is observed as under:
13. ``In the present case, the Appeal could have been filed within limitation till 06th June, 2022 and this Tribunal could have condoned only 15 days delay. The Appeal having been filed on 04 th July, 2022 and delay being beyond 15 days is not condonable.
Hence the Delay Condonation Application (I.A. No. 2431 of 2021) is dismissed. The Memo of Appeal is rejected.'' Analysis:
30. In the instant case, the `order' impugned in CP/IB/113/CHE/2021 was passed by the `Adjudicating Authority' (`National Company Law Tribunal', Special Bench - I, Chennai) on 26.08.2022. The `Appellants', had preferred the instant Comp. App (AT) (CH) (INS.) No.418 of 2022 before this `Tribunal', through E-Portal on 10.10.2022 (on the 46th day - vide Transaction Ref. No.: 1010220030268 dated 10.10.2022; 7.52 P.M.), whereby, a Sum of INR 6,000, through `Internet' based Online payment, in the account of `Filing Fee', was received by the `Office of the Registry', of this `Tribunal'. In the present case, this `Tribunal', aptly points out that the `Appellants', had filed the physical copy of the `Appeal Paperbooks', before the `Office of the Registry' of this `Tribunal', only on 31.10.2022.
31. It cannot be gainsaid, that the `Expiry of 30 days', after the `Pronouncement of the impugned order', dated 26.08.2022, was on IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 26 of 31 24.09.2022. The 30 days period in preferring the `Appeal', by any `Person Aggrieved', in respect of an `Order', passed by the `Adjudicating Authority', is the `deadline' prescribed as per Section 61 (2) of the Insolvency and Bankruptcy Code, 2016. If an `Appellate Tribunal' (`NCLAT'), is satisfied on `sufficient cause', being shown to its `subjective satisfaction', in regard to the preferring of an `Appeal' (after the `Expiry of 30 days period'), then, `such period, shall not exceed 15 days', as per Section 61 (2) of the Code. Admittedly, the `completion of 45 days' (30 + 15 days), was on 09.10.2022. In effect, the maximum 45 days being the outer limit (30 + 15 = 45 days), beyond which, the `Appellate Tribunal' (`NCLAT), is `bereft' of any power, to `condone the delay', in the teeth of the mandate, prescribed under the I & B Code, 2016, as opined by this `Tribunal'.
32. Apart from the above, the ingredients of Section 61 of the I & B Code, 2016, do not visualise that an `Aggrieved Person' / `Concerned Party', is to wait till he / it is in receipt of a `Certified Copy' of the `impugned order', for preferring an `Appeal', before the `National Company Law Appellate Tribunal'.
33. At this juncture, this `Tribunal', relevantly points out that the `Law of Limitation', is an `Adjective Law', and is `Lex Fori'. A `Legal IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 27 of 31 Remedy', is to be kept `alive', for a `Legislatively prescribed period of time'.
34. Ordinarily, in `Law', if a `Party', is not `vigilant', about his `right', he must explain the `delay' in question, to the `subjective satisfaction' of the `Competent Court of Law' / `Tribunal' / `Appellate Tribunal', as the case may be. As a matter of fact, the `delay', that needs to be `explained' is from the `date', the `time was running out', `till the date of filing' of an `Appeal' or an `Application', as per the decision of Hon'ble Supreme Court of India, in Ramlal v. Rewa Coal Fields Limited, AIR 1962, SC
361.
35. So far as the ingredients of Section 61 of the I & B Code, 2016, are concerned, the `Time Limit', enjoined under Section 61 (1) & (2) [30 + 15 = 45 days], is the `Legislative Mandate', and the same, cannot be `tinkered' and `tampered with', in any manner, by any `Person' / `Litigant' / `Stakeholder', as the case may be. Suffice it, for this `Tribunal', to pertinently point out that the `Parties', under I & B Code, 2016, are to be `alert', `diligent', not to be an `indolent' and further not to adopt a `laissez-faire attitude' and `lackadaisical approach'.
36. More importantly, the `procedural formalities', including the `Time Limit', enshrined under the I & B Code, 2016, are to be `adhered to', in IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 28 of 31 `true letter and spirit', bearing in mind, a `prime fact' that `Speed is the gist of the Code'.
Rules of Limitation:
37. There is no second opinion of an established fact, that the `Rules of Limitation', being `Rules of Procedure', do not create any `Rights', in favour of any `Individual' nor do they define or create `causes of action'. After all, they just specify that a `remedy', can be `exercised', only upto a `particular / certain period', and not `later on'.
38. In the instant case, this `Tribunal', pertinently points out that even if one goes by the `Appellants' version, as projected by them, the last date for preferring the instant `Appeal', was on 04.10.2022, and this could be seen as under:
Appellants' Version:
Period Days
26.08.2022 to 04.09.2022 10 days
(Period before applying the
Certified Copy)
15.09.2022 - 04.10.2022 20 days
30 days
Total (30th day being 04.10.2022)
39. Be that as it may, in the light of detailed upshot, keeping in mind, the provisions of the I & B Code, 2016, having an `overriding effect', in IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 29 of 31 respect of other `Laws', as per Section 238 of the Code, this `Tribunal', taking into consideration of yet another fact that the I & B Code, 2016, is an `inbuilt and a self-contained one', yet the Limitation Act, 1963, cannot `supersede' / `march over', the I & B Code, 2016, cemented on the accepted maxim `genralia specialbus non derogant', on a consideration of `attendant facts and circumstances' of the present case, which float on the service, in a cumulative manner, comes to a resultant cocksure conclusion, that the instant Comp. App (AT) (CH) (INS.) No. 418 of 2022, filed by the `Appellants', through `E-Portal' on 10.10.2022 (the 46th day), is clearly `out of time', and in reality, it `exceeds' the outer limit of 30 + 15 = 45 days, permissible under Section 61 of the Code. To put it differently, the instant `Appeal', filed by the `Appellants', is beyond the `prescribed period', envisaged under Section 61 of the I & B Code, 2016.
Viewed in that perspective, the `Condonation of Delay Application', filed by the `Petitioners / Appellants' in IA No. 1025 of 2022, is dismissed, by this `Tribunal', in furtherance of `substantial cause of justice'. No costs. Company Appeal (AT) (CH) (INS.) No. 418 of 2022:
In view of the fact that IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 (`Condone Delay Application'), filed by the `Petitioners / Appellants', is dismissed, by this `Tribunal', the instant IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 30 of 31 Comp. App (AT) (CH) (INS.) No. 418 of 2022, is not `entertained', by this `Tribunal', and the same is `rejected'. No costs. The connected pending `Interlocutory Applications', if any, are Closed.
[Justice M. Venugopal] Member (Judicial) [Naresh Salecha] Member (Technical) 09/01/2023 SR / TM IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022 & Comp. App (AT) (CH) (INS.) No. 418 of 2022 Page 31 of 31