Directorate Of Enforcement vs Diamond Power Infrastructure Limited ...

Directorate of Enforcement ...Appellants

Versus

Prasant Jain, Resolution Professional of Diamond ...Respondent Power Infrastructure Ltd. & Ors.

Present: For Appellant: Advocate Zoheb Hossain, Advocate Kavish Ganach, Advocate Vivek Gurnani. For Respondent: Mr. Malak Bhatt, Neeha Nagpal, Udbhav Nanda, Advocates for SRA-R-2 Advocate A. Goel and Advocate Udit Gupta, for R-1

ORDER

16.11.2022: There is delay in filing the Appeal and Additional Affidavit

has been filed on behalf of Appellant explaining the delay in filing the Appeal.

2. The Order impugned was passed on 20th June, 2022. The Appellant's

case is that the said Order was communicated to the Appellant by the

Resolution Professional through Email dated 23rd June, 2022. The Appellant

submits that he received the certified copy of the Order from the National

Company Law Tribunal on 14th July, 2022 and the computation of limitation

should commence from the date of receipt of certified copy i.e. 14th July, 2022

and the Appeal was filed on 12th August, 2022 hence the Appeal is well within

time.

3. Learned Counsel for the Respondent refuting the submissions of

Learned Counsel for the Appellant, submits that the above issue is fully

covered by the Judgement of the Hon'ble Supreme Court in the matter of "V. -2-

Nagarajan Vs. SKS Ispat and Power Ltd." [2022 2 SCC 244]. He submits

that the Hon'ble Supreme Court has clearly laid down that a party should not

wait for the free certified copy and has to exercise due diligence and apply for

the certified copy of the Order. Learned Counsel has referred to Paragraph 33

of the Judgement, which is to the following effect:

"33. The answer to the two issues set out in Section C of the judgement- (i) when will the clock for calculating the limitation period run for proceedings under the IBC; and (ii) is the annexation of a certified copy mandatory for an appeal to the NCLAT against an order passed under the IBC - must be based on a harmonious interpretation of the applicable legal regime, given that the IBC is a Code in itself and has overriding effect. Sections 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 Section 421(3) of the Companies Act. 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 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 the 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 and prevent limitation from running. Accepting such a construction will upset the timely framework of the IBC. The litigant

Company Appeal (AT) (Insolvency) No. 1087/2022 -3-

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."

(Emphasis Supplied)

4. In the present case, there is no material to indicate that any certified

copy was applied by the Appellant hence the benefit of certified copy for the

purpose of limitation is not available to the Appellant. Limitation for filing the

Appeal is only one month and under Section 61(2) proviso, the Tribunal is

empowered to condone delay of 15 days only on sufficient cause. The Appeal

having been filed beyond 45 days i.e. on 12th August, 2022, we are unable to

condone such delay. The Appeal being barred by time, we are unable to

entertain the Appeal. However, this shall not prejudice the rights of the

Appellant to take such other remedies as available in law.

With the above observations, the Appeal is rejected.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

Basant/nn

Company Appeal (AT) (Insolvency) No. 1087/2022