Birlatyres Mazoodar Sangha & Others ... vs Mr. Pritam Bayal Resolution ...
- CitationCompany Appeal (AT) (Insolvency) No. 432 of 2024
Ratio decidendi
The rule this decision rests on
The Appellate Tribunal's jurisdiction to condone delay in filing an appeal under Section 61(2) of the Insolvency and Bankruptcy Code is limited to a period of fifteen days beyond the expiry of the limitation prescribed by that section, and it cannot extend beyond that window. An application for inspection of records, or an email requesting copies, does not constitute an application for a certified copy within the meaning of the NCLT Rules; the time requisite for obtaining a certified copy under Section 12 of the Limitation Act is excluded only where a proper application for a certified copy has been made. Section 12 of the Limitation Act cannot be invoked to save an appeal where the time for obtaining a certified copy was not properly claimed, and where the application for a certified copy was made only after the limitation period had substantially run, so that the appeal filed beyond the fifteen-day extension is not maintainable.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Company Appeal (AT) (Insolvency) No. 432 of 2024 & I.A. No. 1468, 1469 of 2024 IN THE MATTER OF:
Birla Tyres Mazoodar Sangha & Ors. ...Appellant(s)
Versus
Pritam Bayal, RP & Ors. ...Respondent(s)
Present: For Appellant : Mr. Sangram Patnaik, Mr. R Batra, Ms. Swyam Sidha Patnaik, Mr. MK Mathur, Mr. Sohel Rishab, Advocates For Respondents : Mr. Arishek Guha, Mr. Shaunak Mitra, Mr. Soumya Dutta, Mr. Siddhant Upmanyu, Advocates for RP ORDER
(Hybrid Mode)
27.02.2024: I.A. No. 1468 of 2024. This is an application praying for
condonation of delay in filing the Appeal.
2. This Appeal has been filed against the Order dated 19.10.2023 passed
by the National Company Law Tribunal, Kolkata Bench, Court-II by which
order the Adjudicating Authority has approved the resolution plan.
3. This Appeal has been e-filed on 23rd January, 2024.
4. Learned Counsel for the Appellant submits that Appellants are workers
who were not party to the proceeding and after coming to know about the
order they made an application on 17th November, 2023 for inspection of the
records by payment of demand draft of Rs. 200 and thereafter on 18th
November, 2023 appellant sent an email for certified copy of the application
and on 23rd November, 2023 he made an application for certified copy which
was not granted. Subsequently I.A. has also been filed by the Appellant before 2
the Adjudicating Authority seeking a direction for certified copy which is
pending. Learned Counsel for the Appellant submits that since certified copy
which was sought has not been given, the Appellant could not file the appeal
in time and delay in filing the Appeal need to be condoned.
5. Learned Counsel for the Appellant has referred to application for
inspection dated 17th November, 2023 which is as follows:
"Dear Sir,
Please note that I am the advocate on record for all the four abovementioned workers union of Birla Tyres Limited namely Biiju Pattanaik Karmachari Sabha Reg No. 919-CTC, Biju Sramik Sangha Reg No. 869/CTC/07
Birla Tyres Mazdoor Sangha Reg No. 246/91, Vande Maatram Birla Tyres Mazdoor Sangha Reg No. 521/CTC/07, and represent more than 620 workers. I had also filed form e before the Resolution Professional in the above matter on behalf of all my clients which was duly accepted.
Please further note that the above matter appearing in the list of Hon'ble Tribunal Bench II, Kolkata was called on and heard on 19th October, 2023 when the Hon'ble Tribunal was pleased to pass an order, inter alia, disposing the Company Petition bearing No. C.P.(IB)250(KB) 2021 along with all connected matters and applications.
I therefore request you to allow me to inspect all applications including C.P.(IB)250(KB)2021, I.A. (IB)1599(KB)2023, I.A. (IB)1648(KB)2023, Company Appeal (AT) (Insolvency) No.432/2024 3
I.A.(IB)1069(KB)2023 and other documents including the approved resolution plan, application of resolution plan, objection if any, all orders and other additional paperwork in connection to the same.
I am enclosing herewith a demand draft bearing no. 967970 of Rs. 200/- drawn on Punjab National Bank dated 17.11.2023 for inspection kindly acknowledge receipt.
Yours faithfully,
(Debolina Dey)
Advocate"
6. After the said inspection application, on 18th November, 2023, an email
has been sent by which they have requested the registrar to provide certified
copy of orders including the order dated 19.10.2023, copies of all applications
including approved resolution plan, objection if any. Thereafter on 23rd
November, 2023, Appellant made an application for certified copy of the Order
dated 09.10.2023.
7. When we look into the application for inspection dated 17th November,
2023, the application was for inspection of all the applications including
CP(IB)s, another application including approved resolution plan and cannot
be treated to be an application for certified copy.
8. Now coming to the email dated 18th November, 2023, on which reliance
has been placed by the Appellant, the request in the email is as follows:
Company Appeal (AT) (Insolvency) No.432/2024 4
"I therefore request you to provide my clients certified copy of all orders including order dated 19th October, 2023 and copies of all applications including C.P.(IB)250(KB)2021, I.A. (IB)1599(KB)2023, I.A. (IB)1648(KB)2023, I.A.(IB)1069(KB)2023 and other documents including the approved resolution plan, application of resolution plan, objection if any in connection to the same at your earliest.
Kindly acknowledge receipt."
9. The email which was sent cannot be treated to be an application for
certified copy as per NCLT Rules. For the first time, the Appellant claimed to
make a physical application for certified copy of the Order on 23rd November,
2023 on which no certified copy was allowed since the Appellant was not a
party. Appellant has also filed an application before the Adjudicating
Authority being I.A. No. 2053 of 2023 which is pending.
10. Our jurisdiction to condone the delay is limited to only 15 days after
expiry of the limitation under Section 61(2) proviso. Even from the own case
of the Appellant, it is clear that for the first time the certified copy was applied
on 23rd November, 2023 physically. The email was sent on 18th November,
2023 prayer of which we have quoted above cannot be treated to be an
application for certified copy, according to own case of the Appellant,
application for certified copy was made on 23.11.2023 after 30 days of passing
of the order dated 19.10.2023. We thus are of the view that no benefit under
Section 12 of the limitation act can be allowed to the Appellant whereas
admittedly according to the Appellant, the certified copy was not given.
Company Appeal (AT) (Insolvency) No.432/2024 5
11. The Appeal having been filed on 23rd January, 2024 which is well
beyond time and well beyond period of 15 days which is permissible to be
condoned under Section 61(2) proviso, we are unable to condone the delay in
filing the Appeal. Delay Condonation Application is dismissed. In result,
Memo of Appeal is rejected.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical)
[Arun Baroka] Member (Technical) Basant/nn
Company Appeal (AT) (Insolvency) No.432/2024
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