Sam Business Continuity Services vs Ca Kannan Tiruvengadam
- CitationComp. App. (AT) (Ins) No. 86 of 2021
Ratio decidendi
The rule this decision rests on
The limitation period for an appeal under the Insolvency and Bankruptcy Code runs from the date of the impugned order, and does not stop running merely because the appellant was not supplied with a copy of the approved Resolution Plan or could not ascertain how its claim was dealt with, where the appellant admittedly learned of the order and was therefore free to file an appeal within the prescribed period. The Tribunal's power to condone delay in filing an appeal under the Code is limited to a further period of 15 days beyond the 30-day limitation period, and it cannot extend that limit further. Subsequent events such as the COVID-19 lockdown and closure of courts, occurring after the limitation period has expired, do not furnish a ground for condoning delay that has already occurred.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Comp. App. (AT) (Ins) No. 86 of 2021 & I.A. No. 188 of 2021
In the matter of:
Sam Business Continuity Services ....Appellant Vs. CA Kannan Tiruvengadam and Ors. ...Respondents For Appellant: Ms. Minakshi Jyoti, Mr. Akshat Singh, Advocates. For Respondents: Mr. Rishav Banerjee, Mr. Pratik Mukhopadhyay, Mr. Saptarshi Mandal, Advocates for R1/ Liquidator
ORDER
(Through Virtual Mode)
22.02.2022: Heard Learned Counsel for the Applicant/ Appellant.
2. This is an Application for condonation of delay in filing the present Appeal. The order was passed by the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench, Kolkata on 21.10.2019 approving the Resolution Plan. In the Application, the case of the Applicant is that he came to know about the order on 07.11.2019 and on 17.12.2019, he filed an Application before the Delhi High Court for revival of OMP (Comm) 86 of 2016 and praying for an order directing the Respondent No.1 and 2 for production of the Resolution Plan. He submits that time was taken before the Delhi High Court by the Respondents and thereafter matter was adjourned to 29.04.2020 and on 26.04.2020 due to lock down and closure of the Courts, the Application was listed but Resolution Plan was not supplied and Applicant could not come to know that whether his claim was accepted in the Resolution Plan. It is submitted that he being not aware of how his claim is dealt in the Resolution Plan, he has no cause of action to file an 2
Appeal. He submits that due to above reasons, he could not file the Appeal and delay in filing the Appeal be condoned in exercising jurisdiction under Section 5 of the Limitation Act. Learned Counsel for the Applicant submits that thereafter the request for Resolution Plan was followed by several e- mails to the Resolution Professional as well as NCLT.
3. In delay condonation Application filed by the Applicant/ Appellant, Appellant himself has come with the case that he came to know about the order dated 21.10.2019 on 07.11.2019. In para 5 of the Application, following has been stated:-
"5. It is submitted that it was only on 7.11.2019 that the Appellant had come to know about the Order dated 21.10.2019 vide which the Resolution Plan of Respondent No.3 was approved."
4. The submission which has been pressed before us is that since copy of the Resolution Plan was not made available to the Applicant nor was made part of the order, Appellant could not know how his claim was dealt hence, there was no cause of action for the Appellant to file an Appeal, on 07.11.2019 when he came to know about the order.
5. The period of limitation for filing an Appeal is 30 days. Power to this Tribunal to condone the delay of 15 days only. Even 45 days' time came to an end in December, 2019. The submission is that since there was no cause of action to the Appellant to file an Appeal, the limitation will not start running from passing of the order dated 21.10.2019. We are not persuaded to accept the above submission. When the order is passed by the Adjudicating Authority and admittedly the Appellant came to know of the impugned order on 07.11.2019, he had every right to file an Appeal. The limitation of filing an Appeal shall not be arrested or stop running merely on the ground that the Applicant was not given the copy of the Resolution Plan nor could know how his claim is dealt. The Appellant was aggrieved by the order he should have immediately filed the Appeal within the limitation
Comp. App. (AT) (Ins) No. 86 of 2021 & I.A. No. 188 of 2021 3
provided whereas the Appeal has been filed beyond the limitation as provided in Section 61.
6. We are of the view that this Tribunal is not able to condone delay of more than 15 days as is empowered under the Code. Insofar as the case of the Appellant that there was lockdown and COVID those are all subsequent events after expiry of the limitation which shall not give any credit to the Appellant with regard to delay condonation. We are of the view that the grounds as claimed in the Application for condonation of delay in filing the Appeal are not sufficient for condonation of delay. Delay of condonation is rejected. Appeal stands dismissed as barred by time.
[Justice Ashok Bhushan] Chairperson
[Dr. Alok Srivastava] Member (Technical) Anjali/nn
Comp. App. (AT) (Ins) No. 86 of 2021 & I.A. No. 188 of 2021
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