Shri Kailash Shahra vs State Bank Of India
- CitationComp. App. (AT) (Ins) No. 1449 of 2024
Ratio decidendi
The rule this decision rests on
Under Section 61(2) of the Insolvency and Bankruptcy Code, 2016, the Appellate Authority's power to condone delay in filing an appeal is confined to the 15-day period beyond the 30-day period prescribed by Section 61(1); an appeal filed after that outer limit of 45 days cannot be entertained, and the Appellate Authority has no jurisdiction to condone any delay beyond it, including by invoking Article 142 of the Constitution. Because the application for condonation of delay is not maintainable, an appeal that is not accompanied by a validly condoned delay is not duly constituted and is liable to be dismissed.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Kailash Shahra ...Appellant(s)
Versus
State Bank of India ...Respondent(s) Present: For Appellant : Presence not marked. For Respondents : Presence not marked.
ORDER
(Hybrid Mode) 04.10.2024: IA No. 5279 of 2024
This order shall dispose of I.A. No. 5279 of 2024 filed in Company
Appeal (AT) (Ins). No. 1449 of 2024 by which the appellant has prayed for
condonation of delay of 46 days in filing the appeal.
2. It is needless to mention that the appeal has been filed under Section
61 of the IBC, 2016. The period of 30 days is prescribed under Section 61(1)
for the purpose of filing of such an appeal. However, as per Section 61(2)
proviso, another period of 15 days is given to the appellant to file the appeal
but by assigning sufficient cause to the satisfaction of the Appellate
Authority.
CA (AT) (Ins) No. 1449 of 2024 & I.A. No. 5116, 5279 of 2024 2
3. However, the Appellate Authority does not have the jurisdiction to
extend the period of limitation beyond the period of 15 days as has been
held by the Hon'ble Supreme Court in the case of 'National Spot Exchange
vs. Mr. Anil Kohli RP for Dunar Foods Limited' in SCC Online SC 716, 2021.
4. In this case the appellant has prayed for condonation of delay of 46
days. However, during the course of hearing, Counsel for the Appellant has
submitted that the impugned order was passed on 14.12.2023 and the
appeal is e-filed on 30.01.2024 therefore, there is a delay of 16 days instead
of 46 days.
5. Be that as it may, the period of one day cannot be extended by this
court by condoning the delay in view of clear mandate of Section 61 (2)
proviso and Judgment of the Hon'ble Supreme Court in the case of 'National
Spot Exchange vs. Mr. Anil Kohli RP for Dunar Foods Limited' in SCC Online
SC 716, 2021 in which it has been held that the period of limitation beyond
15 days cannot be condoned even under Article 142 of the Constitution of
India.
6. In view of the aforesaid facts and circumstances, since the appeal has
been filed beyond the period of 45 days i.e. 30+15 days, therefore, the
Tribunal does not have the jurisdiction to condone the delay. Consequently,
the application is hereby dismissed as not maintainable.
CA (AT) (Ins) No. 1449 of 2024 & I.A. No. 5116, 5279 of 2024 3
Comp. App. (AT) (Ins) No. 1449 of 2024
7. Since we have dismissed the application of condonation for delay by
an order of even date, therefore, the present appeal is not found to be duly
constituted and hence the same is hereby dismissed.
[Justice Rakesh Kumar Jain] Member (Judicial)
[Barun Mitra] Member (Technical)
[Naresh Salecha] Member (Technical) sr/rr
CA (AT) (Ins) No. 1449 of 2024 & I.A. No. 5116, 5279 of 2024
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