Raj Kumar Banerjee vs Supriyo Kumar Chaudhuri

Raj Kumar Banerjee, Minority Shareholder of Rohit ...Appellant Ferro Tech Ltd.

Versus

Supriyo Kumar Chaudhuri, Resolution Professional ...Respondents of Rohit Ferro Tech Ltd. & Ors.

Present: For Appellant: Advocate Brijesh Singh Bhadauriya, Advocate Aman Deep Singh. For Respondent: Mr. Ramji Srinivasan, Sr. Advocate with Ms. Niharika Sharma, Ms. Shruti Pandey, Ms. Megha Dugar, Advocates for R-2

ORDER

ASHOK BHUSHAN, J:

1. This is an Application (I.A. No. 1667 of 2022) praying for condonation

of delay in filing the Appeal. The Appeal has been filed against the Order

dated 07th April, 2022 passed by National Company Law Tribunal, Kolkata

Bench, Kolkata.

2. The Appeal has been e-filed on 23rd May, 2022 and physically filed in

this Tribunal on 24th May, 2022.

3. Learned Counsel for the Respondent submits that Appeal is filed

beyond forty-five days from the date of passing of the Order, hence there

being delay of 17 days in filing the Appeal, the same can not be condoned.

-2- 4. Learned Counsel for the Appellant submits that the Appeal has been

e-filed on 44th day hence the delay being not more than 15 days, this

Appellate Tribunal can very well condone the delay in exercise of the powers

conferred under Section 61(2) proviso.

5. Learned Counsel for the Appellant submits that he received the copy

of the Order on 08th April, 2022 hence the Limitation be counted from 08th

April, 2022. Learned Counsel for the Respondent submits that the period of

limitation commenced from the date of the pronouncement of the Order and

in the present case, Order was pronounced on 07th April, 2022 and

limitation has to be counted from 07th April, 2022.

6. The period of limitation is 30 days as per Section 61(1) of the Code.

The power to condone the delay conferred to this Tribunal is only of 15 days.

We thus have to find out in the facts of the present case, whether the delay

in filing the Appeal is within 15 days or more than 15 days.

7. Law is well settled that the period of limitation commences from the

date when the Order is pronounced by the Tribunal. In this context,

reference is made to the Judgement of Hon'ble Supreme Court in the matter

of "V. Nagarajan Vs. SKS Ispat and Power Limited & Ors." [(2022) 2 SCC

244]. We thus have to first find out that when 30 days period of limitation

which is the last date for filing the Appeal, expires. Order having been

passed on 07th April, 2022, 30 days period is to expire on 07th May, 2022.

07th and 08th May, 2022 are the dates being Saturday and Sunday and on

these days, the Court was closed hence last date for filing the Appeal was

09th May, 2022 as 07th and 08th May, 2022 were holidays.

I.A. No. 1667 of 2022 in Company Appeal (AT) (Insolvency) No. 615/2022 -3-

8. Section 4 of the Limitation Act, 1963 as well as Rule 3 of the NCLAT

Rules, 2016 provide that when the Court is closed, the Appeal can be filed

when court reopens. Section 4 of the Limitation Act is as follows:

"4. Expiry of prescribed period when Court is closed. - Where the prescribed period for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal, or application may be instituted, preferred or made on the date when the Court re-opens.

Explanation.- A Court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day."

9. Rule 3 of the NCLAT Rules, 2016 is as follows:

"3. Computation of time period.- Where a period is prescribed by the Act and these rules or under any other law or is fixed by the Appellate Tribunal for doing any act, in computing the time, the day from which the said period is to be reckoned shall be excluded, and if the last day expires on a day when the office of the Appellate Tribunal is closed, that day and any succeeding day on which the Appellate Tribunal remains closed shall also be excluded"

10. 09th May, 2022 being the last day when 30 days period of limitation

came to an end and the Appeal having been e-filed on 23rd May, 2022

whether the delay is 15 days or more, is question to be answered. 09th May,

2022 being the last date of limitation, 10th May, 2022 will be the first day

I.A. No. 1667 of 2022 in Company Appeal (AT) (Insolvency) No. 615/2022 -4-

from which date 15th Days period has to be reckoned. 15th Day from 10th

May, 2022 will be 24th May, 2022, the Appeal being e-filed on 23rd May,

2022, the delay has to be treated to be filed within the period of 15 days

from the expiry of the Limitation.

11. Learned Counsel for the Respondent has referred to Judgement of this

Tribunal in "Isolux Corsan India Engineering & Constructions Pvt. Ltd.

through its Liquidator, CA Rajeev BansaL Vs. Shailesh Verma,

Erstwhile Resolution Professional of South East U.P. Power

Transmission Company Ltd. & Ors." [I.A. No. 3349 of 2022 in C.A. (AT)

Ins. No. 1124 of 2022] wherein Paragraph 10 of the Judgement, following

has been laid down:

"10. The Limitation as prescribed by Section 61(2) is 30 days. Under proviso, the Appellate Tribunal may allow an Appeal to be filed after said period of 30 days if it is satisfied that there is sufficient cause for not filing the Appeal but such period shall not exceed 15 days. When we look into Section 4 of the Limitation Act, 1963, the prescribed period for filing an Appeal when expires on a day when the Court is closed, the Appeal can be instituted when the Court reopens. Thirty-Days period for filing the present Appeal against the Order dated 15th June, 2022 expired on 15th July, 2022. It is not the case that Court was closed on 15th July, 2022. According to the Appellant 46th and 47th Day i.e. 30th and 31st July were holidays. For purposes of extending the benefit of Section 4 of the Limitation Act, the Limitation has to be expired on the date when Court is closed, present

I.A. No. 1667 of 2022 in Company Appeal (AT) (Insolvency) No. 615/2022 -5-

is not a case where the Limitation expiredon a date whenthe Court was closed since limitation is of 30 days and not 45 days. The power to condone the delay of 15 days is exercised by this Tribunal under proviso to Section 61(2) of the Code but it cannot be said that period for limitation is 45 days. Thus the present is not a case where benefit of Section 4 can be extended."

12. What was held by this Tribunal in the above case is that the benefit of

Section 4 of the Limitation Act is admissible with regard to 30 days period of

limitation and the said benefit is not be extended when 45 days are

computed. 15th Day is period which may be condoned but the benefit of

Section 4 of the Limitation Act is not be extended if the 46th and 47th Day

were holidays. Present is not a case where Appellant is claiming benefit of

Section 4 with regard to computation of 30 days period of limitation and not

seeking benefit of 46th and 47th Day. This Tribunal does not have

jurisdiction to condone the delay of more than 15 days but from the facts as

noted above, we are of the view that the Appeal was not filed beyond the

delay of 15 days. Filing of the Appeal was within the delay of 15 days, this

Court can very well consider the grounds for condonation of 15 days delay.

13. Now coming to the facts and grounds taken in the Affidavit, Appellant

has taken ground that Appellant being not party to the Petition under

Section 7 of the Code, he came to know about the Order only on 08th April,

2022 and Appellant preferred the Appeal after procuring the copy of the

Order and announcement pertaining to change in the shareholding of the

Corporate Debtor, delisting of shares of the Corporate Debtor. Appellant

I.A. No. 1667 of 2022 in Company Appeal (AT) (Insolvency) No. 615/2022 -6-

being not in possession of relevant documents for filing the Appeal, the delay

was caused. We are satisfied that sufficient cause has been shown for

condonation of the delay of 15 days in filing the Appeal. Delay Condonation

Application (I.A. No. 1667 of 2022) is allowed.

List this Appeal "For Admission" on 19th December, 2022.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Mr. Barun Mitra] Member (Technical)

14th December, 2022 New Delhi

Basant

I.A. No. 1667 of 2022 in Company Appeal (AT) (Insolvency) No. 615/2022