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Gold Ispat And Steel vs Budhale Engineer Pvt Ltd & Ors

National Company Law Appellate Tribunal11 January 2024

Ratio decidendi

The rule this decision rests on

Under the Insolvency and Bankruptcy Code, 2016, the period of limitation for an appeal under Section 61(2) runs from the date of the impugned order and not from the date on which the appellant came to know of it. Under the proviso to Section 61(2), the period of limitation cannot be extended beyond the further 15 days permitted, and this bars condonation of delay under Section 5 of the Limitation Act, 1963 or the exercise of powers under Article 142 of the Constitution to extend that period. An appeal that is filed after the expiry of the limitation period, where the application for condonation of delay has been dismissed, is not duly constituted and is liable to be dismissed.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH,NEW DELHI

Comp. App. (AT) (Ins) No. 49 of 2023 & I.A. No. 175, 176, 154 of 2023

IN THE MATTER OF: Gangaprasad R Tripathi ...Appellant

Versus

Budhale Engineer Pvt. Ltd. & Ors. ...Respondents

Present: For Appellant : Ms. Akanksha Vasudeva, Advocate.

For Respondents : Ms. Aroshi Pal, for R-1. Mr. Anuj Tiwari & Mr. Girijarati Kaushal, Advocates.

ORDER

[Per : Justice Rakesh Kumar Jain (Oral)

11.01.2024 I.A. No. 175 of 2023

This application is filed for seeking condonation of delay of 356 days in

filing of the appeal. The Impugned Order was passed on 11.02.2021 and the

appeal has been filed on 28.01.2022.

The reason given in the application is that the Impugned Order came to

the knowledge of the Appellant on 30.04.2021. Although it is well settled that

in the IBC regime the limitation is to be counted from the date of passing of the

order and not from the date of knowledge of the order but even if the date of

knowledge is taken for the purpose of counting the period of limitation, the

appeal has been filed on 28.01.2022 after knowing about the Impugned Order

on 30.04.2021 which is clearly barred by limitation as there is a specific period of 30 days prescribed under Section 61(2) of the Code which can further be

extended for a further 15 days in terms of Section 61 (2) proviso.

The Hon'ble Supreme Court in case of National Spot Exchange

Limited Vs. Anil Kohli, Civil Appeal No. 6187 of 2019 has categorically held

that the period of limitation cannot be extended beyond the period of 15 days

even resorting to Article 142 of the Constitution of India.

In view thereof, the application is hereby dismissed as not maintainable.

Comp. App. (AT) (Ins) No. 49 of 2023

Since, we have dismissed the application bearing I.A. No. 175 of 2023 for

condonation of delay, therefore, the present appeal is not found to be duly

constituted and the same is hereby dismissed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical) Sim/Ravi

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