Gold Ispat And Steel vs Budhale Engineer Pvt Ltd & Ors
- CitationComp. App. (AT) (Ins) No. 49 of 2023
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
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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