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2024 Supreme(Online)(NCLAT) 848
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
Justice Sharad Kumar Sharma (Member(Judicial)) , Mr. Jatindranath Swain (Member (Technical)) ,
Southern Power Distribution Company of Telangana Ltd. – Appellant
Versus
Kalvakalonu Murali Krishna Prasad – Respondent
177/CN/2021 COMPANY APPEAL(AT)(INS)
Mr. T.K. Bhaskar, Advocate; Mr. Adithya Reddy, Advocate; Ms. Devangi, PCS; Mr. Y. Suryanarayana, Advocate for R2
An appeal under Section 61 of the Insolvency and Bankruptcy Code is barred by limitation if not filed within the prescribed period, and ignorance of the order does not excuse the failure to apply for a certified copy within that period.
Headnote:(A) Insolvency and Bankruptcy Code, 2016 - Section 61 - Limitation for filing appeal - Appeal filed after the prescribed period of limitation without a condonation application is barred - The appellant claimed ignorance of the impugned order but had knowledge through email communications - The court emphasized the necessity of applying for a certified copy within the limitation period to avail the benefit of extended limitation due to COVID-19 - The appeal was dismissed as it was filed beyond the allowable time frame. (Paras 1-48)
(B) Limitation - Knowledge of proceedings - The appellant, despite not being a party to the proceedings, was deemed to have knowledge due to participation in the Committee of Creditors meetings, thus not entitled to claim ignorance. (Paras 1-48)
(C) Condonation of Delay - The application for condonation of delay was dismissed as the appellant failed to apply for a certified copy within the statutory period, rendering the appeal time-barred. (Paras 1-48)
O R D E R
(Hybrid Mode)
Oral Judgment : Justice Sharad Kumar Sharma, Member (Judicial):
1. This Company Appeal dwells around a very peculiar circumstances, which is rarely found to be made as a subject of adjudication, and that too on a limited question of determination of the aspect of limitation, for the purposes of Company Appeal.
2. The facts are that, the Appellant to the Company Appeal, has preferred this Appeal, being aggrieved as against the Impugned Order of 31.01.2020, as it has been passed in IA/69/2020, rendered in CP(IB)/499/7/HDB/2018.
3. As a consequence of the Impugned Order, the revised final Resolution Plan dated 04.01.2020, as it stood submitted by M/s. SVSS Commercial Pvt. Ltd., was approved by the Members of the Committee of Creditors, having 100% voting Shares, as per the provisions contained under Section 31 (1) of the Code. It is this Order of Approval of Resolution Plan, which has been subject to challenge, in this Appeal.
4. When initially the Company Appeal was preferred by filing the same, before the Registry of this Tribunal on 28.05.2021, it was not accompanied with any Condone Delay Application, despite being an Appeal under Section 61 of I & B Code, 2016 and since the challenge was to the Impugned Order of 31.01.2020, it was apparently much beyond the period prescribed under Sec. 61 to be read with Sub Section 2, and even its proviso.
5. When later on, the Appeal was taken up to be argued on merits, after the exchange of pleadings and furnishing of Notes of Submissions, it is then only, at that stage that, the Appellant had preferred a Condone Delay Application, by filing the same before the Registry initially bearing Diary No. 247 dated 04.08.2021, which was subsequently re-numbered as regular IA No. 361 / 2021, which is listed today for Orders.
6. The said Condone Delay Application is being opposed by the Respondents by filing their objection.
7. The learned Counsel for the Appellant had simpliciter come up with the case that, since the Impugned Judgment happens to be of 31.01.2020, if the period of Limitation is determined in the light of the provisions contained under Section 61 of I & B Code, 2016, 30 days period would be expiring on 01.03.2020 and upon the extension of period of Limitation for the purposes of preferring of an Appeal under Sec. 61, which could be extended by 15 days, by the Appellate Tribunal, as contemplated under the proviso to Sub Section 2 of Section 61, the cut off period of maximum 45 days from the date of Judgment would be expiring on 16.03.2020. Therefore, in view of orders passed by Hon’ble Apex Court from time to time in Suo Moto WP (Civil) No. 3 of 2020 suspending the running of limitation from 15.03.2020 for inter alia filing appeals, this appeal is within the period of limitation.
8. He further submits that since he was not a party to the proceedings, he didn’t have any knowledge of the passing of the Impugned Judgment on 31.01.2020 that he had the knowledge of the Impugned Order on 13.02.2020 when the RP emailed the same to him, and as such, he had preferred the Appeal only when he had procured the copy of the Judgment on 30.04.2021 and that if limitation period is computed from the date of knowledge, then the Appeal is well within the condonable period in light of the orders of Hon’ble Apex Court. 9. He submits that since the Appellant, not being a party to the Company Petition, the free copy of the Judgment as contemplated under Rule 50 of the NCLT Rules, 2016, immediately after passing of the Judgment on 31.01.2020, would not be made available to him, and hence, it was obviously not sent to him, being not a party to the proceedings. But, since the 45 days period under the proviso to Section 61 (2), computed from the date of Judgment i.e. 31.01.2020, would be expiring only on 16.03.2020, being a period falling within the cut off period starting from 15.03.2020 to 28.02.2022, provided as per the Judgment of the Hon’ble Apex Court rendered in a Suo Motu proceedings in M
