Mr. Mukesh Sumermal Sanghvi vs R.D. Engineers (India) Private Limited

Mr. Mukesh Sumermal Sanghvi, Sole Proprietor of Silicon Metal Industries ...Appellant

Vs

R. D. Engineer (India) Pvt. Ltd. ...Respondent

(Arising out of Order dated 21.04.2025 passed by the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench) in Restoration Application No. 19 of 2025 in Company Petition (IB) No. 925 of 2020.)

For Appellant: Mr. Akash Chatterjee, Advocate

For Respondent: Mr. Abhishek Anand, Mr. Ashish Varma, Advocates

JUDGEMENT

Per Justice N. Seshasayee, Member (Judicial)

1. This Appeal is preferred challenging the Order of the Adjudicating Authority

(NCLT, Mumbai Bench, Court-V) dated 21.04.2025 passed in Restoration

Application No. 19 of 2025 in C.P. (IB) No. 925 of 2020, by which application

filed by the appellant seeking restoration of the Company Petition came to be

dismissed.

1 Facts

2. The broad facts necessary for deciding this Appeal are not in dispute. The

appellant had earlier initiated proceedings under Section 9 of the IBC, 2016

against the Respondent, and it was admitted on 26.10.2020. Subsequently,

pursuant to a Settlement Agreement between the parties, the Petition came to

be withdrawn by an order dated 16.04.2021 with liberty to revive the proceedings

in the event of default of settlement terms. Indeed, Clauses 18 and 19 of the

Settlement Agreement expressly provided for revival of the proceedings upon

default to make payment in terms of the settlement.

3. Alleging breach of the settlement and default in payment, the appellant filed

Restoration Application No. 19 of 2025 seeking revival of C.P. (IB) No. 925 of

2020. The Adjudicating Authority, by Order dated 21.04.2025, dismissed the

Restoration Application, without even issuing notice to the respondent, primarily

on the ground that it was filed nearly two years after the last instalment date

under the settlement schedule. The appellant, however, disputes the said

computation of delay and asserts that the cause of action continued in view of

subsequent payments and acknowledgments.

4. The impugned Order records that it was "Delivered on 21.04.2025" and notes

the appearance of counsel for both parties. The Order was hosted on the official

website of the Adjudicating Authority on 29.04.2025. The present Appeal has

been filed on 10.06.2025. The immediate issue is whether the appeal has been

instituted within the time prescribed under Section 61(2) of the Code?

2 Appellant's Submissions

5. The learned counsel for the appellant contended that:

a) On the issue of delay of filing the appeal, though the impugned Order bears

the date 21.04.2025, it was uploaded on the official website only on

29.04.2025, and therefore, limitation ought to be computed from that date.

It is submitted that the appeal having been filed within 45 days from

29.04.2025, the delay, if any, is within the condonable limit. It was further

urged that the appellant could not have acted upon the impugned order

until it was made available on the official website. An Additional Affidavit

has been filed on behalf of the appellant placing on record the date of

uploading of the Order as 29.04.2025.

b) The liberty granted by the Adjudicating Authority vide its order dated

16.04.2021 for reviving the company petition contingent upon the failure

of settlement was unconditional and that it was not subject to any rigid

time frame. At any rate, the application for restoration was filed in time.

The last payment was made on 22.02.2023. This has to be read with the

email of the respondent dated 27.06.2023 and the appellant's response

dated 09.08.2023 constitute uncontroverted documentary evidence

evidencing repeated acknowledgments of liability and requests for time

under the settlement Agreement. And it extended the limitation under

Section 18 of the Limitation Act. Indeed, appellant had issued multiple

reminders and legal notices calling upon the respondent to honour its

obligations and approached the Tribunal only upon denial of liability. This

apart, the impugned order contains clerical inaccuracies, including

incorrect recording of appearance on behalf of the respondent and

3 misdescription of counsel, in respect of which an application for correction

of record has also been filed.

Respondent's Submissions

6. Per contra, the learned counsel for the Respondent, supported by an

Additional Affidavit filed by the Managing Director of the Respondent Company,

argued:

a) the limitation under Section 61(2) of the Code commences from the date

of pronouncement of the order, where Orders are pronounced in the open

court Tand not from the date of uploading. Indeed in terms of Rule 89 of

the NCLT Rules, 2016, Orders are required to be pronounced in open court

and there is no concept of pronouncement in chambers. The impugned

order was pronounced in open court on 21.04.2025 in the presence of

counsel for the appellant, and the appellant has not specifically denied

this fact. Reliance was placed on the dictum of the Hon'ble Supreme Court

in A. Rajendra Vs Gonugunta Madhusudan Rao, [2025 INSC 447] and

Tata Steel Ltd. v. Raj Kumar Banerjee [(2025) 9 SCC 483] wherein it is

held that where a judgment is pronounced in open court, limitation begins

from that date itself.

b) Even if the period taken for obtaining certified copies is excluded, the

appeal is beyond the maximum condonable period.

Discussion & Decision

7. There are two issues: (a) a preliminary issue requiring an investigation if the

appeal is within limitation; and (b) the issue on the merit of the appeal. Unless

4 the preliminary issue is decided in favour of the appellant, there will be no room

for considering the appeal on merit.

a) Is the appeal filed within time, or within the condonable period of

limitation? Section 61(2) of the Code prescribes a period of 30 days for

filing an appeal, with a further condonable period not exceeding fifteen

days. The statutory scheme leaves no room for condonation beyond the

stipulated 15 days. The limitation is peremptory and jurisdictional.

b) The law on commencement of limitation under Section 61(2) is settled.

Reliance is placed upon the Hon'ble Supreme Court's judgement in V.

Nagarajan v. SKS Ispat & Power Ltd. (2022) 2 SCC 244 wherein it was

held that limitation begins from the date of pronouncement of the order

and not from the date of receipt of a certified copy or the date of uploading.

The principle that emerges is plain: once a judicial order is pronounced in

open court, the law imputes knowledge to the parties and sets the clock of

limitation in motion. This position has been reaffirmed in A. Rajendra Vs

Gonugunta Madhusudan Rao, [2025 INSC 447] wherein it has been

clarified that where the order is pronounced in open court, limitation

commences from that very date. To hold otherwise would be to make

limitation contingent upon administrative timelines, a position the statute

does not countenance. Limitation, in this context, is not merely procedural

but jurisdictional, for once the statutory window closes, the Tribunal is

not merely restrained, it is rendered powerless.

c) In the present case, the impugned Order expressly records that it was

"Delivered on 21.04.2025" and also records the appearance of counsel for

the Petitioner and the Respondent. There is no material placed before us

5 to show that the Order was not pronounced in open court on that date.

The additional affidavit filed by the appellant confines itself to the date of

uploading and does not assert that the order was not pronounced on

21.04.2025 or that counsel was unaware of its delivery, nor is there any

specific denial of pronouncement. On the other hand, the respondent

asserted that the order was pronounced in open court, and the said

assertion remains undisputed as it has not been denied by the Appellant.

Uploading of an order is an administrative act; pronouncement of a

judgement/order is a judicial act. The statute attaches consequence to the latter,

and not to the former. To hold that limitation commences only upon uploading

would amount to postponing the operation of Section 61(2) until completion of

administrative formalities, which the statute does not contemplate. Can

limitation then be made to depend on the uncertainties of the administrative

process? The answer must necessarily be in the negative.

8. In the instant case, if limitation is computed from 21.04.2025, the period of

30 days expired on 20.05.2025 and the outer limit of 45 days expired on

04.06.2025. Even after granting exclusion for the period spent in obtaining the

certified copy, the appeal filed on 10.06.2025 remains beyond the maximum

condonable period. Once the appeal crosses the statutorily prescribed 30 + 15

days, this tribunal cannot even take cognizance of the appeal.

9. On merit, after declaration of law by the Hon'ble supreme Court in Glas Trust

Company LLP Vs Byju Raveendran and others [(2025) 3 SCC 625] legality of

the very Order of the Adjudicating Authority dated 21.04.2025, permitting inter

6 party settlement post admission of the CoC itself comes into focus, but it may

have to be stated to the credit of the Adjudicating Authority that its Order was

passed prior to the judgement in Glas Trust Case. Now, how the restoration

petition based on an order which was passed prior to Glas Trust ratio but

considered after the said dictum, poses an interesting issue. However, in view

of the bar of limitation, we are refrained from entering an enquiry into the same.

10. To conclude, we hold that the appeal having been filed beyond the period

prescribed under Section 61(2) of the Code is not maintainable. Consequently,

the present Appeal is dismissed. The appellant however, is entitled to resort to

other legal means for realisation of its dues, in terms of applicable laws. No

costs.

[Justice N. Seshasayee] Member (Judicial)

[Arun Baroka] Member (Technical) rs/beena

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