| Headnote |
Insolvency and Bankruptcy Code, 2016 – ss.61(1), 238, 238- A – Limitation Act, 1963 – ss.12(2), 29(2) – Companies Act 2013 – s.420(3) – National Company Law Tribunal Rules, 2016 – r.50 – National Company Law Appellate Tribunal Rules – r.22 – NCLT vide order dtd. 31.12.19 dismissed the appellant’s application in a liquidation proceeding, seeking interim relief against invocation of a bank guarantee by Respondent No.10 against the Corporate Debtor – Appellant filed appeal, dismissed by NCLAT as barred by limitation – On appeal, held: Owing to the special nature of the IBC, the aggrieved party is expected to exercise due diligence and apply for a certified copy upon pronouncement of the order it seeks to assail, in consonance with the requirements of r.22(2), NCLAT Rules – s.12(2), Limitation Act allows for an exclusion of the time requisite for obtaining a copy of the decree or order appealed against – It is not open to a person aggrieved by an order under the IBC to await the receipt of a free certified copy u/s.420(3), Companies Act, 2013 r/w r.50 of the NCLT and prevent limitation from running – No effort made on the part of the appellant to secure a certified copy of the said order, relied on the date of the uploading of the order (12.03.20) on the website – Period of limitation for filing an appeal u/s.61(1) against the order of the NCLT dtd. 31.12.19, expired on 30.01.20 in view of the thirty-day period prescribed u/s.61(2) – Any scope for a condonation of delay expired on 14.02.20, in view of the outer limit of fifteen days prescribed under the proviso to s.61(2) – NCLAT correctly dismissed the appeal on limitation. Insolvency and Bankruptcy Code, 2016 – s.61(1) – Limitation period for filing an appeal against order of NCLT – Held: Litigant has to file its appeal within thirty days, which can be extended up o a period of fifteen days, and no more, upon showing sufficient cause – Court is not empowered to condone delays beyond statutory prescriptions in special statutes containing a provision for limitation. Insolvency and Bankruptcy Code, 2016 – s.61(2) – Companies Act 2013 – s.420(3) – National Company Law Tribunal Rules, 2016 – r.50 – Held: s.420(3), Companies Act r/w r.50, NCLT Rules enables a party to compute limitation from the date of receipt of the statutorily mandated free certified copy, without having to file its own application – However, Sagufa Ahmed v. Upper Assam Plywood Products Pvt Ltd clarified that the statutory mandate of a free copy is not to enable litigants to take two bites at the apple where they could compute limitation from either when the certified copy is received on the litigant’s application or received as a free copy from the registry- whichever is later. Insolvency and Bankruptcy Code, 2016 – National Company Law Appellate Tribunal Rules – rr.14, 22 – Order passed under IBC – Appeal to NCLAT – Annexation of certified copy, if mandatory – Held: r.22(2) of the NCLAT Rules mandates the certified copy being annexed to an appeal, which continues to bind litigants under the IBC – While it is true that the tribunals, and even Supreme Court, may choose to exempt parties from compliance with this procedural requirement in the interest of substantial justice, as re-iterated in r.14 of the NCLAT Rules, the discretionary waiver does not act as an automatic exception where litigants make no efforts to pursue a timely resolution of their grievance – Companies Act, 2013 – s.420(3). Insolvency and Bankruptcy Code, 2016 – ss.61(1), (2) – Companies Act 2013 – s.421(3) – Held: ss.61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the “order is made available to the aggrieved party”, in contradistinction to s.421(3) of the Companies Act. Code of Civil Procedure, 1908 – s.9 – Right to file suit and the right to file appeal – Distinction between – Discussed – Insolvency and Bankruptcy Code, 2016 – ss.60, 61(1), (2), 62 and 63. Insolvency and Bankruptcy Code, 2016 – s.61(2) – Limitation Act, 1963 – s.12 – Held: s.12 provides guidance on reckoning the period of limitation and excludes the time taken by a party for obtaining a certified copy of the order it seeks to appeal – However, the explanation clarifies that the time taken by the court in preparing the order before an application for a copy is filed by the aggrieved party, is not excluded from the computation of limitation. National Company Law Appellate Tribunal Rules – rr.14, 22 – Held: 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 r.22(2), NCLAT Rules nugatory. Words & Phrases – “from the date on which a copy of the order of the Tribunal is made available to the person aggrieved” – Absence of – Insolvency and Bankruptcy Code, 2016 – s.61(1) – Companies Act 2013 – ss.420(3), 421(3) – Held: Difference between s.421(3), Companies Act and s.61(2), IBC is in the absence of the aforesaid words in the latter – Absence of these words cannot be construed as a mere omission which can be supplemented with a right to a free copy u/s.420(3)r/w r.50 of the NCLT Rules for the purposes of reckoning limitation. |
