M/S. Custodial Services (India) Pvt. ... vs M/S. Metaflims (India) Ltd
- CitationCompany Appeal (AT) No. 363 of 2017
Ratio decidendi
The rule this decision rests on
The Appellate Tribunal under sub-section (3) of Section 421 of the Companies Act, 2013 may condone delay in filing an appeal only up to a further period of forty-five days beyond the prescribed period of forty-five days; where the appeal is filed beyond that outer limit, the Tribunal has no jurisdiction to condone the delay and the condonation petition must be rejected. Where the impugned order was passed by the Adjudicating Authority under the Insolvency and Bankruptcy Code, 2016 (and the appeal is brought under Section 61 of that Code), an appeal against that same order under Section 421 of the Companies Act, 2013 is not maintainable.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
M/s. Custodial Services (India) Pvt. Ltd. ...Appellant
Vs.
M/s. Metaflims (India) Ltd. ...Respondent
Present: For Appellant:- Mr. R. Subramaniam and Mr. Arnav Dash, Advocates. For Respondent:- Mr. Mohit D Ram and Mr. Rajul Shrivastav, Advocates.
ORDER
16.11.2017- The Appellant has filed this appeal against the order
dated 13th July, 2017 passed by the Adjudicating Authority (National
Company Law Tribunal), Chennai Bench, Chennai in TCP/423/(IB)/2017,
along with a petition for condonation of delay. The impugned order under
challenge was passed on 13th July, 2017 and in terms of Section 421 of
the Companies Act, 2013, it should have been filed within forty-five days
i.e. by 27th August, 2017. However, the said date being a holiday, at best
the appeal could have been filed by 28th August, 2017, but it was not filed
within the said period.
2. Under sub-section (3) of Section 421 of the Companies Act, 2013,
the Appellate Tribunal is empowered to condone the delay but not
exceeding forty-five days. Therefore, if forty-five days is calculated from
27th August, 2017 it is 12th October, 2017 by which date it should have
filed. However, we find that the appeal was initially presented on -2-
1 ith October, 2017 with defect, therefore the paper book was taken back
by the appellant. Thereafter, the appeal was filed on 23rd October, 2017.
Thus there being delay beyond forty-five days, this Appellate Tribunal has
no jurisdiction to condone the delay. For the said reason, petition for
condonation of delay is rejected.
3. Apart from the aforesaid fact it has come to our notice that against
the same very impugned order treating the order passed by the
Adjudicating Authority under 'I&B Code' a TCP/423/(IB)/2017 has been
filed by the Appellant under Section 61 of the Insolvency and Bankruptcy
Code, 2016. If the impugned order has been passed by Adjudicating
Authority under 'I&B Code', the appeal Section 421 of the Companies Act,
2013 is not maintainable.
3. For the said reasons also, we dismiss the appeal which is barred by
limitation as also being not maintainable. No cost.
(Justice S.J. Mukhopadhaya) Chairperson
(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk
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