Jindal Power Limited vs Dushyant C. Dave Liquidator Shirpur ...

Jindal Power Limited ...Applicant/Appellant

Versus

Dushyant C. Dave ...Respondents Liquidator of Shirpur Power Pvt. Ltd. & Ors.

Present: For Appellant: Mr. Ramji Srinivasan, Sr. Advocate with Mr. Sumit Attri, Mr. Priyanshu Pandey, Mr. Ritu Anand, Ms. Priyashree Sharma, Mr. Siddhant Puri, Advocates For Respondent: Mr. J Rajesh, Mr. Dhrupad Vaghani, Ms. Nandita Bajpai, Advocates

ORDER

ASHOK BHUSHAN, J:

1. This Application (I.A. No. 32 of 2023) has been filed praying for

condonation of delay in filing the Appeal. This Appeal under Section 61 of

the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as "The

Code") has been filed against the Order dated 02nd August, 2022 passed by

the Adjudicating Authority ((National Company Law Tribunal, Ahmedabad,

Division Bench, Court-1) rejecting I.A./561(AHM)2022 filed by the Appellant,

the Successful Bidder. Challenging the Order dated 2nd August, 2022, this

Appeal has been filed on 19th September, 2022.

2. On 21st February, 2023, following order was passed:-

"21.02.2023: Learned Counsel Shri Abhijeet Sinha appearing for Respondent submits that there is a delay in filing the appeal which is beyond 15 days.

-2- Learned Counsel for the Appellant submits that time was taken in obtaining certified copy of the order and he seeks liberty to file Additional Affidavit bringing on record the certified copy of the order obtained. As prayed, one week's time is allowed.

List this appeal for orders on 03.03.2023."

3. After the Order of this Tribunal dated 21.02.2023, both the parties

were heard on the Delay Condonation Application on 16th March, 2023. In

pursuance of time allowed, an Additional Affidavit dated 27th February, 2023

has been filed by the Appellant.

4. Learned Counsel for the Appellant in support of Application for

Condonation of Delay submits that Appellant applied for certified copy of

Order on 15th September, 2022 which was made available to the Appellant

on 19th September, 2022. From the date of filing application for certified

copy of the order till the receipt of the certified copy of the order that is from

15th September, 2022 to 19th September, 2022 the time ought to be

excluded and after excluding the said period, Appeal is filed on 43rd day that

is within 45 days. It is submitted that the Appeal being filed within 45 days,

this Tribunal can condone the delay in filing the Appeal. Sufficient cause

has been shown in the Application.

5. Learned Counsel appearing for the Liquidator opposing the

submissions of Learned Counsel for the Appellant on the Delay Condonation

Application contends that this Appeal is barred by time having been filed on

48th Day from the order passed. It is submitted that order was pronounced

on 2nd August, 2022 and the Appeal have been filed on 19th September,

I.A. No. 32 of 2023 in Company Appeal (AT) (Insolvency) No. 11/2023 -3-

2022. 30th Day period came to an end on 1st September, 2022 and further

15 days period came to an end on 16th September, 2022 thus 45th day

expired on 16th September, 2022 and Appeal having been filed on 19th

September, 2022 is clearly beyond 15 days after expiry of limitation.

Learned Counsel for the Respondent submits that Appellant is not entitled

to exclude the period during which certified copy of the order was applied. It

is submitted that Appellant has not applied for certified copy of the order

within 30 days rather it was applied beyond 30 days hence the benefit of

Section 12 of the Limitation Act is not applicable.

6. We have considered the submissions of Learned Counsel for the

parties and have perused the record.

7. There is no dispute between the parties regarding the date of

pronouncement of the Order of the Adjudicating Authority and date of filing

of the Appeal. Order was pronounced on 2nd August, 2022 and Appeal was

filed on 19th September, 2022. From 2nd August, 2022, 30th days period

came to an end on 01st September, 2022 and further 15 days period also

came to an end on 16th September, 2022, the Appeal filed on 19th

September, 2022 is thus on 48th day. The delay thus is beyond 45 days.

8. The submission which has been advanced by Learned Counsel for the

Appellant is that application for certified copy of the order was filed by the

Appellant on 15th September, 2022 which was delivered only on 19th

September, 2022 thus the period consumed during obtaining certified copy

need to be excluded and by excluding the said period, the Appeal is within

time. Along with the Additional Affidavit filed by the Appellant dated 27th

I.A. No. 32 of 2023 in Company Appeal (AT) (Insolvency) No. 11/2023 -4-

February, 2023, copy of the certified copy of the Impugned Order has been

brought on record. A perusal of the Certified Copy of the Order which has

been filed along with Additional Affidavit indicates following endorsement:-

"Date of pronouncement of Order: 02-8-2022 Date on which application for Certified Copy was made: 15-9-2022 Date on which Certified Copy was ready: 19-9-2022 Date of which Certified Copy delivered: 19-9-2022"

9. The application for certified copy has been filed by the Appellant on

15.09.2022 that is after expiry of 30 days period from pronouncement of the

Order. Section 12 (2) of the Limitation Act, 1963 provides for exclusion of

time requisite for obtaining a copy of the decree, sentence or order. Section

12(2) is as follows:

"(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded."

10. Hon'ble Supreme Court in "V. Nagarajan Vs. SKS Ispat & Power

Ltd. (2022) 2 SCC 244 in paragraph 31 has while considering sub-section

(2) of Section 12 of the Limitation Act observed that a person wishing to file

an appeal is expected to file an application for a certified copy before the

expiry of the limitation period, upon which the time requisite for obtaining a

I.A. No. 32 of 2023 in Company Appeal (AT) (Insolvency) No. 11/2023 -5-

copy is to be excluded. Following is the observation of the Hon'ble Supreme

Court in the above judgement:

"31. The import of Section 12 of the Limitation Act and its Explanation is to assign the responsibility of applying for a certified copy of the order on a party. A person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the "time requisite" for obtaining a copy is to be excluded."

11. The benefit of period requisite for filing certified copy can be claimed

by an Applicant only when certified copy is applied before the expiry of the

period of limitation. Even if a litigant makes an application on the last day of

limitation for certified copy of the order he is entitled to reckon the period for

obtaining certified copy for purposes of computation of limitation. The

present is a case where certified copy was applied by the Applicant after

expiry of 30 days of limitation as prescribed in Section 61 of the Code. When

certified copy has been applied after expiry of the period of limitation, the

applicant cannot be allowed to take benefit of Section 12(2) of the Limitation

Act. The Appellant thus cannot claim the benefit for the period from 15th

September, 2022 to 19th September, 2022 during which certified copy was

under preparation. The Appellant being not entitled for benefit of aforesaid

period, the Appeal filed by the Appellant was beyond 15 days after the expiry

of the period of limitation. The jurisdiction of the Tribunal in Section 61

proviso is limited to condonation of delay of 15 days only. This tribunal has

no jurisdiction to condone the delay beyond 15 days. The present Appeal

I.A. No. 32 of 2023 in Company Appeal (AT) (Insolvency) No. 11/2023 -6-

having been filed beyond the delay of 15 days after the expiry of period of

limitation, we are unable to condone the delay in filing the Appeal.

The delay condonation application (I.A. No. 32 of 2023) is dismissed.

Consequently, the Memo of Appeal is rejected.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

11th April, 2023

New Delhi Basant

I.A. No. 32 of 2023 in Company Appeal (AT) (Insolvency) No. 11/2023