Parsvnath Developers Limited vs A S Choudhary

Parsvnath Developers Ltd. ...Appellant

Versus

A.S. Choudhary & Ors. ...Respondents

Present: For Appellant: Mr. Sakal Bhushan, Mr. Karan Rajpurohit and Mr. Vasu Bhushan, Advocates. For Respondents: Mr. Satendra K. Rai, Mr. Aditya Dewan and Mr. Pravar Veer Misra, Advocates for R-1.

ORDER

(Virtual Mode)

29.07.2022: Heard learned counsel for the Appellant. This Appeal has

been filed against order dated 29.03.2022 passed by the Adjudicating

Authority (National Company Law Tribunal), New Delhi, Bench-III.

2. There is an application for condonation of delay being I.A. No.

2296/2022 praying for condonation of delay by applying Section 14 of the

Limitation Act by excluding period from 18.04.2022 to 29.04.2022 during

which period the application for review was pending consideration before the

Adjudicating Authority.

3. Learned counsel for the Appellant submits that since the Appellant has

applied for procedural review and was awaiting the decision of the

Adjudicating Authority on the application, he can be given benefit of Section

Cont'd.../ 2

14 of the Limitation Act and delay can be condoned. By exclusion of such

period the Appeal will be within time.

4. The short issue to be considered in this application is whether the

Appellant can claim benefit of Section 14 in its application on the ground that

he has filed an application for review before the same Adjudicating Authority

pending for the aforesaid time. Section 14 Sub-Section (1) and (2) of the

Limitation Act provides as follows:-

"14. Exclusion of time of proceeding bona fide in court without jurisdiction. --

(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."

Company Appeal (AT) (Insolvency) No. 834 of 2022 3

5. Limitation Act is made applicable to proceedings under I&B Code by

virtue of Section 238A of the I&B Code. Learned counsel for Appellant is right

in his submission that in IBC proceedings Section 5 and Section 14 of

Limitation Act are both applicable and in appropriate cases the Court can

allow extention of time under Section 5 as well as Section 14.

6. Section 14(1) and 14(2), on which reliance has been placed by learned

counsel for the Appellant are not attracted in the present case for following

two reasons:-

(i) Section 14(1) is applicable with regard to suits.

(ii) Section 14(2) is applicable with regard to applications.

7. In the present case, an Appeal is being filed under Section 61, which is

the specific provision under the Code regarding filing of Appeals. Section

61(2) provides for limitation for filing an Appeal. Section 61(2) of the I&B Code

is as follows:-

"Section 61: Appeals and Appellate Authority.

x x x

(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."

Company Appeal (AT) (Insolvency) No. 834 of 2022 4

8. The learned counsel for the Appellant contends that his case is covered

under Section 14(2) since he was prosecuting another civil proceeding in the

proceeding before the same Adjudicating Authority which period ought to be

excluded by giving benefit in computing the limitation for this Appeal. We are

of the view that benefit of Section 14(2) cannot be claimed by the Appellant in

the present Appeal as Section 14(2) is applicable with regard to applications

and limitation for filing Appeal cannot be claimed to be extended by virtue of

Section 14(2). Further, applicability of Section 14 requires that plaintiff or

applicant has been prosecuting with due diligence another civil proceeding,

whether in a court of first instance or of appeal or revision. Said provision is

not applicable when in the same court Applicant has another proceeding. He

cannot claim benefit of Section 14 with regard to any proceeding in the same

court including the review.

9. We, thus, are of the view that the Appellant is not right in his

submission that appellant can get benefit of Section 14. The Appeal is barred

by time. We do not find any good ground to condone the delay. Delay

condonation application is dismissed. Consequently, memo of appeal is also

rejected.

[Justice Ashok Bhushan] Chairperson

[Justice M. Satyanarayana Murthy] Member (Judicial)

[Barun Mitra] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No. 834 of 2022