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Insolvency: Certified copy of order must be applied for within 30 days of passing impugned order

Cause Title : M/s. Platinum Rent A Car (India) Pvt. Ltd. vs M/s. Quest Offices Limited, Comp App (AT) (CH) (Ins) No.448/2022, National Company Law Appellate Tribunal At Chennai

Date of Judgment/Order : 12.01.2023

Corum : Justice M. Venugopal, Member (Judicial) & Shreesha Merla, Member (Technical)

Citied: 

Background

Appeal was filed against the order of the NCLT with an application for condonation of delay of 25 days. The Appellant had requested for condonation of delay based on the fact that while the order of the NCLT was passed on 08.06.2022, the ‘Certified Copy’ of the above ‘impugned order’ was applied on 21.07.2022 and the ‘Appellant’, was provided with a ‘Certified Copy of the same’, on 26.07.2022

Judgment

The appeal was rejected by the NCLAT on the ground that the ‘procedural formalities’ (including the ‘time limit’), enshrined under the ‘Insolvency & Bankruptcy Code, 2016’, ought to be followed in true ‘letter and spirit’, because of the fact that ‘Speed’ is essence of the ‘Insolvency & Bankruptcy Code, 2016’. As per Section 61, every appeal shall be filed within thirty days before the National Company Law Appellate Tribunal and 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.

The NCLAT observed that the ‘Appellate Tribunal’ has no ‘power’ to condone the ‘Delay’ after 30 + 15 = ‘45 Days’ and in the instant appeal came to be filed on 55th day, which is beyond the ‘permissible limit’, provided under the ‘Insolvency & Bankruptcy Code, 2016’. This ‘Tribunal’, is not to extend its ‘Judicial arm of generosity, considering the fact that the ‘Insolvency & Bankruptcy Code, 2016’, is a self-contained and inbuilt one. Also an invocation of Section 12 of the ‘Limitation Act’, 1963, will be of no assistance to the ‘Petitioner’ / ‘Appellant’ because of the ‘overriding effect’ of the ‘ingredients of Section 238 of the ‘Insolvency & Bankruptcy Code, 2016’.

Opinion

Though the conclusion drawn by the Ld. NCLAT is correct, the explanation is rather confusing. The Supreme Court in V Nagarajan vs SKS Ispat and Power Ltd.& Ors., has clearly stated that :-
  1. While filling a suit is a right, filling appeal is not.
  2. As per Rule 22(2) of the NCLT rules, an appeal from an order under the IBC will having to be accompanied with a certified copy of the impugned order which can however be waived at the discretion of the court.
  3. The certified copy have to be applied within 30 days of the order passed.
  4. The additional 15 days exemption allowed under Section 61 is entirely at the discretion of the court and applied only in the interest of justice being served.

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