Om Prakash Pandey vs Bank Of India & Anr
- CitationCompany Appeal (AT) (Insolvency) No. 481 of 2022
Ratio decidendi
The rule this decision rests on
The appellate period under Section 61(2) of the Insolvency and Bankruptcy Code, 2016 is thirty days from the impugned order, and the proviso permits the Tribunal to condone a delay only up to a further fifteen days, provided it is satisfied there was sufficient cause; an appeal filed beyond that outer limit of forty-five days cannot be entertained and the delay cannot be condoned. A delay application falling outside the statutory power of condonation under the proviso to Section 61(2) is liable to be rejected, and an appeal that is barred by time on that footing is liable to be dismissed as such. An appeal returned for defects must be refiled within a reasonable period, and a refiling after a delay of several years is not condonable; the Tribunal treats the refiling date, not the original filing date, as the operative date for limitation purposes where the appeal was returned and refiled late.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Om Prakash Pandey ...Appellant
Versus
Bank of India & Anr. ...Respondents
Present: For Appellant: Mr. Subhasish Bhowmick and Ms. Manisha Pandey, Advocates. For Respondent: Mr. Namit Suri, Ms. Surabhi Sinha and Ms. Sonal Malik, Advocates for R-1.
ORDER
(Virtual Mode)
04.05.2022: Heard Shri Subhasish Bhowmick, learned counsel for the Appellant. This Appeal has been filed against order dated 18.10.2019 passed by the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata in C.P. (IB) No. 518/KB/2018. The Appeal has been filed in this Tribunal on 11.12.2019. The limitation for filing an appeal as per Section 61 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'I&B Code') is thirty days and the power to this Tribunal is for condoning delay of 15 days. Hence, the Appeal ought to have been filed within 30 days i.e. by 17.11.2019, which was filed on 11.12.2019, which was much beyond 45 days. After filing of the Appeal some defects were pointed out and Appeal was returned to the Appellant on 12.12.2019. The Appeal was refiled only on 27.04.2022.
2. Learned counsel for the Appellant relied on suo-moto judgment of Hon'ble Supreme Court in Suo Motu Writ Petition (Civil) No. 03/2020 and submits that period of limitation has been extended from 15.03.2020 and as Appellant was suffering from COVID therefore the Appeal could not be presented on time.
Cont'd.../ -2-
3. The Appeal when filed before this Tribunal on 11.12.2019 was barred by time as per Section 61 sub-section (2). Section 61 sub-section (2) provides as follows:
"(2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal:
Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days."
4. The power for condonation of delay which is vested with this Tribunal is not exceeding fifteen days as per proviso to Section 61(2).
5. The Appeal having been filed beyond 45 days of passing of order dated 18.10.2019 i.e. on 11.12.2019, the Appeal was clearly barred by time and this Tribunal cannot condone the delay as prayed in the application filed alongwith the Appeal. We, thus, are of the view that Delay Condonation Application deserves to be rejected and is hereby rejected. Further, the defects were pointed out on 12.12.2019 and Appeal has been refiled on 27.04.2022 after three years and four months which delay in refiling also cannot be condoned. Consequently, the Appeal is dismissed as barred by time.
[Justice Ashok Bhushan] Chairperson
[Shreesha Merla] Member (Technical) Archana/nn
Company Appeal (AT) (Insolvency) No. 481 of 2022
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