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Il&Fs Financial Services Limited vs Empower India Limited

National Company Law Appellate Tribunal29 March 2023Ashok Bhushan

Ratio decidendi

The rule this decision rests on

Under Section 61 of the Insolvency and Bankruptcy Code, 2016, the Appellate Tribunal's power to condone delay in filing an appeal is limited to a further period of 15 days beyond the 30-day limitation period, and it has no jurisdiction to condone delay beyond that 15-day period. Section 14 of the Limitation Act, 1963 (exclusion of time spent in bona fide proceedings in a court without jurisdiction) can be invoked to exclude time only where the case genuinely falls within its ingredients; a party who has not pursued such proceedings cannot claim its benefit, so an earlier decision that applied Section 14 liberally on different facts does not govern a case where no such ground exists.

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

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHICompany Appeal (AT)(Insolvency) No. 25 of 2023

IN THE MATTER OF: IL & FS Financial Services Ltd. ... Appellant

Versus Empower India Ltd. ...Respondent

Present: For Appellant : Mr. Akshat Hansaria, Mr. Tanmay Arora, Advocates

For Respondent : Mr. Amar Vivek and Mr. Abhinav Tyagi, Advocates for Respondent.

ORDER

29.03.2023: I.A. No. 249 of 2023

This is an Application praying for condonation of delay in filing appeal.

2. This appeal is filed against an order dated 14.10.2022 passed by the

Adjudicating Authority (NCLT, Mumbai) in C.P. No. 541/IBC/MB/2020. The

Appellant's case is that after the order was passed, he immediately applied for

certified copy of the impugned order on 02.11.2022. Along with the application,

document no. 1 has been filed which indicates that certified copy was applied

on 02.11.2022. Learned Counsel for the Applicant/Appellant has submitted

that the copy of the order was uploaded on 15.11.2022. His argument is that

he could not have filed the appeal prior to that.

3. We have considered the submissions of the Appellants and perused the

records. In the present case impugned order was passed on 14.10.2022. 30

days' limitation was till 14.11.2022 and giving the benefit of 13 days in uploading the impugned order during which the certified copy of the order was

under preparation, the appeal could have been filed on 27.11.2022.

4. This appeal has been e-filed on 14.12.2022 and physical copy was filed

on 15.12.2022. The appeal has been filed beyond 15 days' delay. Under Section

61 of IBC, the power to condone delay vested with this Appellate Tribunal is 15

days only. When the delay is beyond 15dasy, the Appellate Tribunal cannot

exercise its jurisdiction to condone delay.

5. Learned Counsel for the Appellant placed reliance on a judgment of

Chennai Bench of this Tribunal in Company Appeal(AT)(CH)(Ins) No. 337 of

2022 decided on 24.11.2022 in the matter "M.K. Resely and Ors. Vs. Union

Bank of India and Ors." wherein learned Counsel for the Appellant has relied

on paragraph-36 which has the following facts:

..

"36. In view of the fact, that the 'Petitioners'/'Appellants have indulged in 'Bona fide Litigious Activity', in preferring the W.P. No. 2832/2022 and W.A. No.537/2022, before the Hon'ble High Court of Kerala, this 'Tribunal', by construing the ingredients of Section 14 of the 'Limitation Act' 1963, in a liberal manner and by applying 'Equity', permits the exclusion of period from '25.01.2022 till 22.06.2022' ('147 days'), in computing the 'Period of Limitation', and consequently 'disposes of' the IA/990/2022, without cost."

..

6. When we look into the judgment of Chennai Bench of this Tribunal, it

appears that Tribunal by giving benefit of Section 14 of the Limitation Act, has

in a liberal manner, treated the appeal within time.

Company Appeal (AT)(Insolvency) No. 25 of 2023 Page 2 of 3

7. The present is not a case where there is any case for claiming benefit of

Section 14 of the Limitation Act. Hence, the said judgment has no application

in the present case.

8. In view of the aforesaid, we do not find any ground to condone delay

beyond 15 days. Application for condonation of delay is dismissed.

Consequently, the appeal stands dismissed.

[Justice Ashok Bhushan] Chairperson

[Mr. Barun Mitra] Member (Technical) akc/nn

Company Appeal (AT)(Insolvency) No. 25 of 2023 Page 3 of 3

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