National Company Law Appellate Tribunal
Sumit Singh Basisth vs Sare Gurugram Pvt. Ltd on 22 March, 2024
Author: Ashok Bhushan
Bench: Ashok Bhushan
NATIONAL COMPANY LAW APPELLATE TRIBUNAL,
PRINCIPAL BENCH, NEW DELHI
I.A. No. 808 of 2024
in
Company Appeal (AT) (Insolvency) No. 138 of 2024
IN THE MATTER OF:
Sumit Singh Basisth & Anr. ...Appellant(s)
Versus
Sare Gurugram Pvt. Ltd. & Anr. ...Respondent(s)
Rep. Through Monitoring Committee
For Appellant: Ms. Priya Kumar, Mr. Tejas Chhabra, Mr. Kabir
Harpalani, Ms. Priya Chauhan, Advocates.
For Respondents: Mr. Ajay Bhargava, Ms. Wamika Trehan, Ms.
Raddhika Khanna and Mr. Siddhant Kumar,
Advocates.
With
I.A. No. 1251 of 2024
in
Company Appeal (AT) (Insolvency) No. 367 of 2024
IN THE MATTER OF:
Sunny Kr. Singh ...Appellant(s)
Versus
Sare Gurugram Pvt. Ltd. & Anr. ...Respondent(s)
For Appellant: Ms. Priya Kumar, Mr. Tejas Chhabra, Mr. Kabir
Harpalani, Ms. Priya Chauhan, Advocates.
For Respondents: Mr. Ajay Bhargava, Ms. Wamika Trehan, Ms.
Raddhika Khanna and Mr. Siddhant Kumar,
Cont'd.../
-2-
Advocates.
JUDGMENT
ASHOK BHUSHAN, J.
1. I.A. No. 808 of 2024 and I.A. No. 1251 of 2024 have been filed praying for condonation of delay in filing these two Appeals.
2. Company Appeal (AT) Ins. No. 138 of 2024 has been filed challenging the Order passed by the NCLT, Principal Bench, New Delhi dated 24th April, 2023 in I.A. No. 702/PB/2022 by which order, the Adjudicating Authority has approved the Resolution Plan of the Corporate Debtor-Sare Gurugram Pvt. Ltd. This Appeal has been e-filed on 25th January, 2024, there being delay in filing the Appeal, I.A. No. 808 of 2024 has been filed.
3. Company Appeal (AT) Ins. No. 367 of 2024 has been filed challenging the Order passed by the NCLT, Principal Bench, New Delhi dated 24th April, 2023 in I.A. No. 702/PB/2022 by which order, the Adjudicating Authority has approved the Resolution Plan of the Corporate Debtor-Sare Gurugram Pvt. Ltd. This Appeal has been e-filed on 09th January, 2024, there being delay in filing the Appeal, I.A. No. 1251 of 2024 has been filed.
4. We have heard Learned Counsel for the parties on the delay condonation applications. Both the Delay Condonation Applications I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -3- raises same question of facts and law hence they have been heard together.
5. In I.A. No. 808 of 2024, prayer is to condone the delay of 223 days in filing the Appeal.
6. In I.A. No. 1251 of 2024, prayer is to condone the delay of 230 days in filing the Appeal.
7. I.A. No. 808 of 2024: The brief facts giving rise to this Application are:-
The Appellant Sumit Singh Basisth and Ms. Poonam Shatrughan Singh have filed C.A.(AT) Ins. No. 138 of 2024 challenging the Order of NCLT, Principal Bench approving the Resolution Plan of the Corporate Debtor Sare Gurugram Pvt. Ltd. by Order dated 24th April, 2023.
Appellants' case in the Application is that Corporate Insolvency Resolution Process against the Corporate Debtor commenced vide Order dated 09.03.2021 in pursuance of the admission order. IRP made a public announcement on 12.03.2021 called for number of claim from the creditors. Claims were filed. CoC was constituted.
Form G was published thereafter EOI was received and in pursuance of RFRP Resolution Plans were received. Resolution Plan came to be approved by the CoC with 100% vote on 17.12.2021 the Resolution Professional filed an Application for approval of the Resolution Plan being I.A. No. 702 of 2022 which came to be I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -4- approved by the Adjudicating Authority vide Order dated 24th April, 2023. The Appellant/Applicant filed this Appeal on 25th January, 2024. The ground in the Application is that Appellant were not aware of the CIRP of the Corporate Debtor and they came to know about the Order dated 24th April, 2023 only on 23rd November, 2023. The Appellant was added in WhatsApp group namely "Sare Shop Buyers Group' on 09.10.2023 and thereafter Appellant wrote an email on 18.10.2023 to the RP which was bounced back. After making further enquiries, RP vide email dated 23rd November, 2023 informed the Appellant about CIRP and about the Impugned Order hence this Appeal has been filed. The case of the Appellant further is that coming to know about the Order on 23rd November, 2023, Appeal was e-filed on 30th December, 2023 and hard-copy could be presented on 02.01.2024. It is submitted that Appellants are NRI who are residing outside the country.
8. I.A. No. 808 of 2024: This application prays for condonation of 230 days delay in filing the Appeal. C.A.(AT) Ins. No. 367 of 2024 has been filed on 09.01.2024. The Appellant's case in the Application is that in November, 2023 Appellant made an attempt to reach SRA vide Email dated 22nd November, 2023. It is only by email dated 25th November, 2023 and 27th November, 2023, Appellant came to know about the initiation of CIRP approval Order of the Adjudicating Authority dated 24th April, 2024. Appellant being unaware of the proceeding, could not file the Appeal.
I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -5-
9. Learned Counsel for the Appellant in support of Delay Condonation Applications submits that Appellant being unaware of the Order, Appellant could not file and right to file appeal could arise only when Appellant came to know about the order. The limitation for filing the Appeal shall not commence from the date when order was passed by the Adjudicating Authority. In the facts of the present case the Appellants have filed the Appeal within condonable period of 15 days. It is submitted that although there is no quarrel to the preposition that this Tribunal has jurisdiction to condone the delay of 15 days only but Appellant being not party to the proceeding and having come to know only in October, 2023, Appellants filed these Appeals within condonable period. It is submitted that Appellant having no knowledge either of initiation of CIRP or order approving the Resolution Plan and having come to know about the same court proceeding in October, 2023, the delay is within condonable period. It is submitted that the statutory provision under Section 61(2) does not use the word "from the date of the order", Appeals being statutory right, the provision has to be construed in a manner to give effect the right of the Appeal and to make the Appeal practicable. Learned Counsel for the Appellant in support of her submission relied on several Judgments of Hon'ble Supreme Court, High Courts and this Tribunal which we shall refer to while considering the submission in detail.
10. Learned Counsel for the Respondent refuting the submission of Learned Counsel for the Appellant submits that both the Appeals are highly barred by time. Appeals having been filed beyond condonable I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -6- period need to be dismissed. It is submitted that the case of the Appellant that Appellant have no knowledge of the CIRP Process cannot give any benefit to the Appellant in the limitation for challenging the order which Appeal have been filed beyond 223/230 days delay. It is submitted that it is well settled that limitation shall commence from the date of the pronouncement of the Order. In the present case, Impugned Order was pronounced on 24th April, 2023, period of limitation has to be calculated from the date of order. Interpretation sought to be given by the Appellant defeats the underlying objective of the IBC. Erstwhile Resolution Professional has taken all steps by issuance of public notice making publication as per rules, Appellant having never filed any claim, they cannot be allowed to challenge the order after inordinate delay.
11. Learned Counsel for the Appellant in support of her submission submits that Appellant is entitled to file an Appeal within 30 days. Limitation under Section 61(2) is to be considered from the date of knowledge and when law provides remedy to person, provision has to be construed in a manner to make the rules practicable and meaningful. Section 61(2) of the Code provides as follows:
"(2) Every appeal under sub-section (1) shall be filed within thirty days1 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 I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -7- there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days."
12. The question as to whether Section 61(2) need to be interpreted to mean as to whether the period of 30 days shall commence from the date of knowledge of the Order has been dealt by Hon'ble Supreme Court in V. Nagarjan Vs. SKS Ispat and Power Limited & Ors. (2022) 2 SCC 244. Hon'ble Supreme Court has noted the provision of Section 421 of the Companies Act and statutory changes made in the scheme by Section 61. Hon'ble Supreme Court after considering the aforesaid provisions have clearly held that conscious deletion of words earlier occurring in Section 421 of the Companies Act i.e. from the date on which copy of the Order of the Tribunal is made available to the person makes clear that there is a clear departure in the IBC statutory scheme. In para 31 to 33, Hon'ble Supreme Court laid down following:
"31. The import of Section 12 of the Limitation Act and its Explanation is to assign the responsibility of applying for a certified copy of the order on a party. A person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the "time requisite" for obtaining a copy is to be excluded. However, the time taken by the court to prepare the decree or order before an application for a copy is made cannot be excluded. If no application for a certified copy has been made, no exclusion can ensue. In fact, the Explanation to the provision is a clear indicator of the legal position that the time which is taken by the court to prepare the decree or I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -8- order cannot be excluded before the application to obtain a copy is made. It cannot be said that the right to receive a free copy under Section 420(3) of the Companies Act obviated the obligation on the appellant to seek a certified copy through an application. The appellant has urged that Rule 14 [ "14. Power to exempt.--The Appellate Tribunal may on sufficient cause being shown, exempt the parties from compliance with any requirement of these rules and may give such directions in matters of practice and procedure, as it may consider just and expedient on the application moved in this behalf to render substantial justice."] of the Nclat Rules empowers Nclat to exempt parties from compliance with the requirement of any of the rules in the interests of substantial justice, which has been typically exercised in favour of allowing a downloaded copy in lieu of a certified copy. While it may well be true that waivers on filing an appeal with a certified copy are often granted for the purposes of judicial determination, they do not confer an automatic right on an applicant to dispense with compliance and render Rule 22(2) of the Nclat Rules nugatory. The act of filing an application for a certified copy is not just a technical requirement for computation of limitation but also an indication of the diligence of the aggrieved party in pursuing the litigation in a timely fashion. In a similar factual scenario, Nclat had dismissed an appeal [Prowess International (P) Ltd. v. Action Ispat & Power (P) Ltd., 2018 SCC OnLine NCLAT 644] as time-barred under Section 61(2) IBC since the appellant therein was I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -9- present in court, and yet chose to file for a certified copy after five months of the pronouncement of the order.
32. The appellant had argued that the order of Nclat notes that 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 12-3-2020. The appellant submitted that the suo motu order of this Court dated 23-3-2020 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 :
(2021) 3 SCC (Cri) 801 ("suo motu order")] , taking retrospective effect from 15-3-2020, made under Article 142 of the Constitution, extended the limitation until further orders, which renders the appeal filed on 8-6-
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 15-3-2020. In this case, owing to the specific language of Sections 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) 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 12-3-2020. However, the mandate of the law is to impose an obligation on the appellant to apply for a certified copy once the order I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -10- was pronounced by NCLT on 31-12-2019 [Cethar Ltd. (Resolution Professional) v. SKS Ispat & Power Ltd., MA No. 906/IB/2019 in CA No. 38/IB/2018, order dated 31-12-2019 (NCLT)] , by virtue of Section 61(2) 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 20-3- 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 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801 ("suo motu order")] of this Court which came into effect on 15-3-2020. 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 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; Singh Enterprises v. CCE, (2008) 3 SCC 70; Chhattisgarh SEB v. CERC, (2010) 5 SCC 23; Bengal Chemists & Druggists Assn. v. Kalyan Chowdhury, (2018) 3 SCC 41 : (2018) 2 SCC (Civ) 30] .
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 I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -11- 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."
13. Learned Counsel for the Respondent has placed reliance in Judgment of Hon'ble Supreme Court in Safire Technologies Pvt. Ltd. Vs. Regional Provident Fund Commissioner & Anr. C.A. No. 2212 of 2021 where Hon'ble Supreme Court specifically rejected the submission I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -12- that period of limitation would start from the date of knowledge. The following was held by Hon'ble Supreme Court in the aforesaid case:
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 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 1st 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 I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -13- 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."
14. Learned Counsel for the Respondent has also referred to Judgment of Hon'ble Supreme Court in National Sport Exchange Limited Vs. Anil Kohli, RP of Dunar Foods, 2022 11 SCC 761 where Hon'ble Supreme Court held that this Tribunal has also no jurisdiction to condone delay exceeding 15 days. In para 16 to 17 and 20 to 21, following was laid down:
"16. It is also required to be noted that even Shri Maninder Singh, learned Senior Counsel appearing on behalf of the appellant has, as such, fairly conceded that considering Section 61(2) of the IB Code, the Appellate Tribunal has jurisdiction or power to condone the delay not exceeding 15 days from the completion of 30 days, the statutory period of limitation. However, he has requested and prayed to condone the delay in exercise of powers under Article 142 of the Constitution of India, in the facts and circumstances of the case and submitted that the amount involved is a very huge amount and that the appellant is a public body. We are afraid what cannot be done directly considering the statutory provisions cannot be permitted to be done I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -14- indirectly, while exercising the powers under Article 142 of the Constitution of India.
17. At this stage, decision of this Court in ONGC Ltd. [ONGC Ltd. v. Gujarat Energy Transmission Corpn. Ltd., (2017) 5 SCC 42 : (2017) 3 SCC (Civ) 47 :
AIR 2017 SC 1352] is required to be referred to. Before this Court, the question was with respect to delay beyond 120 days in preferring the appeal under Section 125 of the Electricity Act and the question arose whether the delay beyond 120 days in preferring the appeal is condonable or not. After considering various earlier decisions of this Court on the point and considering the language used in Section 125(2) of the Electricity Act which provided that delay beyond 120 days is not condonable, this Court has observed and held that it is not condonable and it cannot be condoned, even taking recourse to Article 142 of the Constitution.
20. Thus, considering the statutory provisions which provide that delay beyond 15 days in preferring the appeal is uncondonable, the same cannot be condoned even in exercise of powers under Article 142 of the Constitution.
21. In view of the aforestated settled proposition of law and even considering the fact that even the certified copy of the order passed by the adjudicating authority was applied beyond the period of 30 days and as observed hereinabove there was a delay of 44 days in preferring the appeal which was beyond the period of
15 days which maximum could have been condoned and in view of specific statutory provision contained in Section 61(2) of the IB Code, it cannot be said I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -15- that Nclat has committed any error in dismissing the appeal on the ground of limitation by observing that it has no jurisdiction and/or power to condone the delay exceeding 15 days.
15. Learned Counsel for the Appellant has placed reliance on Judgment of Hon'ble Supreme Court in D Saibaba Vs. Bar Council of India, 2003 6 SCC 186, Hon'ble Supreme Court in the said case was considering the question of limitation for filing a review under the Advocates Act, 1961. Learned Counsel for the Appellant has relied on para 8, 9, 12 and 14 which are as follows:
"8. We have heard the learned counsel for the appellant writ petitioner and the respondent Bar Council of India and Smt D. Anuradha, the complainant. At the hearing of the appeals it was urged that there was a doubt whether the Bar Council of India has committed an arithmetical error in calculating the period of limitation and therefore whether the review petition could at all be held barred by time. So, the learned counsel for the Bar Council of India sought to support the order dismissing the review petition on the alternative ground that on the language of Section 48-AA, the Bar Council of India becomes functus officio on the lapse of 60 days from the date of the order and its jurisdiction to exercise power of review comes to an end, and therefore also the impugned order dated 26-8-2001 has to be sustained. However, the learned counsel for the parties agreed that the two questions relating to interpretation of Section 48- AA are of frequent occurrence and the Bar Council of India is also feeling difficulty in several cases, and I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -16- therefore desires both the questions may be answered by the Court. Accordingly, the appeals have been heard.
9. So far as the commencement of the period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression "the date of that order" as occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the review petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart.
12. In Asstt. Transport Commr. v. Nand Singh [(1979) 4 SCC 19] the question of limitation for filing an appeal under Section 15 of the U.P. Motor Vehicles Taxation Act, 1935 came up for the consideration of this Court. It provides for an appeal being preferred "within thirty days from the date of such order". The taxation officer passed an order on 20-10- 1964/24-10-1964 which was received by the person aggrieved on 29-10-1964. The appeal filed by him was within thirty days -- the prescribed period of limitation, calculated from 29-10-1964, but beyond thirty days of 24-10-1964. It was held that the effective date for I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -17- calculating the period of limitation was 29-10-1964 and not 24-10-1964.
14. How can a person concerned or a person aggrieved be expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words "the date of that order", therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed."
16. It is relevant to notice that this Tribunal in Raiyan Hotels and Resorts Pvt. Ltd. Vs. Unrivalled Projects Pvt. Ltd., C.A.(AT) Ins. No. 1071 of 2023 decided on 11.10.2023 has considered the similar submissions raised by the Appellant in support of the Delay Condonation Application filed along with the Appal under Section 61. Judgment of the Hon'ble Supreme Court in D. Saibaba was also relied on which was noted and considered by this Tribunal in the said Judgment. In para 29, 30 and 31, laid down following:
"29. Learned Counsel for the Appellant has also relied on the judgment of the Hon'ble Supreme Court in "D. Saibaba vs. Bar Council of India and Anr.- (2003) 6 SCC 186". In the above case, Review Petition was filed by the Appellant was rejected as barred by time and the Hon'ble Supreme Court has occasion to examine Section 48-AA of the Advocates Act, 1961. Contention was raised in the Appeal that right to review can be exercised only when order is known or communicated to the aggrieved person. The Hon'ble Supreme Court has held that the expression "the date of that order" as I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -18- occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order. The Hon'ble Supreme Court also in the said case has referred to judgment of "Raja Harish Chandra Raj Singh" (supra). In paragraphs 9 and 10, following was held:-
"9. So far as the commencement of the period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression "the date of that order" as occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order to the review petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to a sinking heart.
10. An identical point came up for the consideration of this Court in Raja Harish Chandra Raj Singh v. Dy. Land Acquisition Officer'. Section 18 of the Land Acquisition Act, 1894 contemplates an application seeking reference to the court being filed within six months from the date of the Collector's award. It was held that "the date of the award" cannot be determined solely by reference to the time when the award is signed by the Collector or delivered by him in his office.
I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -19- It must involve the consideration of the question as to when it was known to the party concerned either actually or constructively. If that be the true position, then placing a literal and mechanical construction on the words "the date of the award" occurring in the relevant section would not be appropriate. It is fair and just that a decision is communicated to the party whose rights will ultimately be affected or who will be affected by the decision. The knowledge, either actual or constructive, of the party affected by such a decision, is an essential element which must be satisfied before the decision can be brought into force. Thus construed, the making of the award cannot consist merely of the physical act of writing an award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. A literal or mechanical way of construing the words "from the date of the Collector's award" was held to be unreasonable. The Court assigned a practical meaning to the expression by holding it as meaning the date when the award is either communicated to the party or is known by him either actually or constructively."
30. The Hon'ble Supreme Court in the same judgment in paragraph 14 has also held that the expression "the date of that order", therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed. In paragraph 14 of the judgment, following was held:-
I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -20- "14. How can a person concerned or a person aggrieved be expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words "the date of that order", therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed."
31. In the present case, orders passed by the Adjudicating Authority were pronounced in the open Court in the presence of the Counsel for the Appellant. In any view of the matter, they cannot contend that they do not have even constructive knowledge of the order on the said date. Knowledge of the order has to be actual or constructive knowledge and when the orders are pronounced, it can very well be said that the constructive knowledge has to be imputed to the contents of the order to an aggrieved party. In event the submission of the Appellant is accepted that unless the contents of the order are known to an aggrieved party, he cannot exercise the right of appeal and period of limitation for filing an Appeal shall not commence till he is aware of the contents of the order, it may lead to uncertainty and delay in resolution process which are not in accordance with the scheme of the IBC. IBC is a statute which provide for timely resolution/ liquidation of the Corporate Debtor. Timeline for various acts are prescribed. The Hon'ble Supreme Court in "V. Nagarajan" (supra) has held that Section 61 has to be interpreted keeping in view the purpose and object of the IBC and Section 61 has to be put to interpretation I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -21- in the above manner. We, thus, are of the view that the submission of the Appellant that the period of limitation shall commence for filing the Appeal when aggrieved party/ Appellant is aware of the contents of the order cannot be accepted.
17. In the present case as noticed above, the Impugned Order dated 24th April, 2023 was pronounced on 24th April, 2023 which is mentioned in the Impugned Order itself when order is pronounced by the Court the pronouncement is for all concerned. We having already held that Hon'ble Supreme Court in Safire Technologies Pvt. Ltd. (supra) laid down that commencement of the period of limitation for filing an appeal under Section 61 is not date when Appellant came to knowledge of the Order.
18. Learned Counsel for the Appellant has also relied on several other Judgments of the Hon'ble High Court including Judgment of Madras High Court Kavanna, Vana, Ena Swaminathan Alias Chidambaram Pillai Vs. Lakshmanan Chettiar and Anr. where the Madras High Court was considering the provisions of Section 73 and Section 77 of the Indian Registration Act in reference to concept "making of the order". The said Judgment was on a statutory scheme which provided that an order to be valid under Section 77 should be passed in presence of the parties after notice to them and if not notice has been given it should be communicated to them. Thus statutory scheme itself contemplated communication of the order hence the said judgment does not help the Appellant in the present case.
I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -22-
19. Another Judgment relied on by Learned Counsel for the Appellant is AIR 1951 Mad 204, O.A.O.A.M. Muthiah Chettiar Vs. The Commissioner of Income Tax, Madras which judgment also in no manner helps the Appellant in the present case where Hon'ble Supreme Court was considering the question of limitation for filing a revision under Income Tax Act.
20. Learned Counsel for the Respondent has relied on order of this Tribunal passed in Appeals filed by several other Appellants challenging the Order dated 24th April, 2023 which is challenge in the present Appeals. There was several other Applicants filed the Appeals against the Order dated 24th April, 2023. The Appeals being barred by time, the said Delay Condonation Applications were considered and this Tribunal has passed an order rejecting the similar applications praying for condonation of delay where delay was more than 15 days. We may refer to order on I.A. No. 3008 of 2023 in C.A.(AT) Ins. No. 889 of 2023 which application were rejected by Order dated 06.10.2023.
21. Learned Counsel for the Appellant submits that against the Order passed by this Tribunal, Civil Appeals have been filed in the Hon'ble Supreme Court where Hon'ble Supreme Court has issued notice and also passed an interim order. Reference has been made to Civil Appeal Diary No. 47268 of 2023 which appeal was filed against the order dated 06.10.2023 passed in I.A. No. 3008 of 2023 in C.A.(AT) Ins. No. 889 of 2023. Against the order of this Tribunal dismissing Delay Condonation I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -23- Application, Appeals have been filed where Hon'ble Supreme Court on 22nd January, 2024 has issued notice and passed following order:
"Delay condoned.
Issue notice and tag with Civil Appeal No.7943 of 2023 titled "Mithilesh Devi & Ors. vs. Asset Care and Reconstruction Enterprises Ltd. & Ors.".
Notice will be served by all modes, including dasti.
In the meanwhile, interim order dated 11.12.2023 passed in Civil Appeal No.7943 of 2023 will operate in the present case. Accordingly, third-party rights will not be created with respect to persons who have made payments for the flats or are in possession of the apartments. Further, the flat buyers in possession will not be dispossessed."
22. Learned Counsel for the Appellant has referred to various further orders passed by Hon'ble Supreme Court entertaining the civil appeals and issuing notice and passing interim orders. Learned counsel for the Respondent submitted that the Appeals in which notices have been issued by the Hon'ble Supreme Court are still pending consideration. It is submitted that the notices have been issued by the Hon'ble Supreme Court cannot be ground for this Appellate Tribunal to condone the delay which is beyond condonable period.
23. The mere fact that Appellants claim that they were not aware of the process of CIRP nor they could file any claim in the CIRP cannot be a ground to permit the condonation of delay which is beyond condonable period. Ignorance of entire CIRP Process cannot be a ground to condone I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024 -24- the delay which is beyond condonable period. From the facts brought on record by the parties, it is clear that several Appellants who had filed the Appeals against the Order dated 24th April, 2023 along with delay condonation applications which applications were rejected on the ground that delay was beyond 15 days. The order passed by this Tribunal rejecting similar applications filed by the other Appellants/Applicants cannot be ignored.
24. We thus are satisfied that there are no grounds made in these applications to condone the inordinate delay of 223/230 days in filing these Appeals.
25. Both the delay condonation applications are dismissed. In result, the Memo of Appeals are rejected.
[Justice Ashok Bhushan] Chairperson [Barun Mitra] Member (Technical) [Arun Baroka] Member (Technical) NEW DELHI 22nd March, 2024 Basant I.A. No. 808, 1251 of 2024 in Company Appeal (AT) (Insolvency) No. 138, 367 of 2024