Vinsons Project India Pvt. Ltd vs Raguleela Builders Pvt. Ltd. & Anr

Vinsons Project India Pvt. Ltd. ...Appellant(s)

Versus

Raghuleela Builders Pvt. Ltd. ...Respondent(s)

Present: For Appellant : Mrs. Prem Lata Bansal, Sr. Advocate with Mr. Shivang Bansal, Advocates.

For Respondents : Mr. Rajeev K. Pandey, Mr. Alok Jain, Advocates for RP.

ORDER

(Hybrid Mode)

02.05.2024: This Appeal is filed against an order dated 18.12.2023

passed by the Adjudicating Authority (National Company Law Tribunal,

Mumbai Bench, Court V) in I.A. 2440/2022 in C.P. (IB)-498(MB)/2021.

2. The impugned order was passed on 18.12.2023 and admittedly the

appeal under Section 61 of the Code ought to be filed within 30 days plus 15

days as is required under Section 61. Admittedly this Appeal has been filed

beyond this period.

3. In Pushpa Builders Ltd. Vs. Paramveer Distributor Pvt. Ltd. in

Company Appeal (AT) (Insolvency) No. 1371 of 2024 on similar facts, the

following order was passed:

"6. Section 61 of the Code provides for appeals and appellate authority. It would be relevant to refer to the Section 61(1), (2) and its proviso which read as under: -

-2- "61. (1) Notwithstanding anything to the contrary contained under the Companies Act 2013, any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub- section (1) shall be filed within thirty days1 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"

7. As per Section 61(1) any person aggrieved by the order of the Adjudicating Authority under this part may file an appeal to the Appellate Tribunal. As per Section 61(2) every appeal which is to be filed under Section 61(1) has to be filed within 30 days before the Appellate Tribunal. As per 61(2) proviso the Appellate Tribunal has the jurisdiction to extend the period of 15 days if it is satisfied that there is a sufficient cause for not filing the appeal within the prescribed time.

8. The present appeal has been filed beyond the period of 45 days i.e. a period of 30 days provided in Section 61(1) and 15 days provided in proviso to Section 61(2). In this regard, Hon'ble Supreme Court in the case of V. Nagarajan (Supra) has held that: -

"The answer to the two issues set out in Section C of the judgement- (i) when will the clock for calculating the limitation period run for proceedings under the IBC; and (ii) is the annexation of a certified copy mandatory for an appeal to the NCLAT against an order passed under the IBC - must be based on a harmonious interpretation of the applicable legal regime, given that the IBC is a Code in -3-

itself and has overriding effect. Sections 61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the "order is made available to the aggrieved party", in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of the IBC, the aggrieved party is expected to exercise due diligence and apply for a certified copy upon pronouncement of the order it seeks to assail, in consonance with the requirements of Rule 22(2) of the NCLAT Rules. Section 12(2) of the Limitation Act allows for an exclusion of the time requisite for obtaining a copy of the decree or order appealed against. It is not open to a person aggrieved by an order under the IBC to await the receipt of a free certified copy under Section 420(3) of the Companies Act 2013 read with Rule 50 of the NCLT and prevent limitation from running. Accepting such a construction will upset the timely framework of the IBC. The litigant has to file its appeal within thirty days, which can be extended up to a period of fifteen days, and no more, upon showing sufficient cause. A sleight of interpretation of procedural rules cannot be used to defeat the substantive objective of a legislation that has an impact on the economic health of a nation."

9. In the case of National Spot Exchange Limited (Supra) has held that:-

"Thus, considering the statutory provisions which provide that delay beyond 15 days in preferring the appeal is uncondonable, the same cannot be condoned even in exercise of powers under Article 142 of the Constitution."

10. Thus, in view of the aforesaid facts and circumstances, even if, the Appellant has submitted that a fraud has been played, in so far as, the delay is concerned, it cannot be -4-

condoned by this Tribunal because of lack of jurisdiction. The application is thus dismissed and as a consequence of dismissal of the application for condonation of delay, the main appeal is also dismissed. However, without any order as to costs.

4. Admittedly the Appeal has been filed after 45 days. However the

condonation of delay for 71 days is prayed for. The grounds of delay are

though mentioned in para 4 of the application i.e. I.A. No. 2681 of 2024 but

as is held above, the delay beyond 45 days is uncondonable. Thus, there is no

merit in the application i.e. I.A. No. 2681/2024 and it is dismissed.

Consequently, the Appeal is also dismissed. Pending application(s), if any,

stand disposed of.

[Justice Yogesh Khanna] Member (Judicial)

[Barun Mitra] Member (Technical)

[Ajai Das Mehrotra] Member (Technical)

R.N./N.N.