Imp. Rulings - Section 61, Limitation to file Appeal with NCLAT
Index;
NCLAT (2025.02.25) in Dhanlaxmi Bank Ltd. Vs. Ritu Rastogi (RP) and Ors. [(2025) ibclaw.in 148 NCLAT, I.A. No.7598 of 2024 in Company Appeal (AT) (Insolvency) No. 2131 of 2024],
NCLAT (2025.02.21) in BSE Ltd. Vs. Mrudula Brodie & Ors. [(2025) ibclaw.in 144 NCLAT, Company Appeal (AT) (Insolvency) No. 1862 & 1883 of 2024 & IA No.6846 of 2024 with IA No.6950 of 2024],
SCI (2024.09.27) in State Bank of India Vs. India Power Corporation Ltd. [(2024) ibclaw.in 255 SC, Civil Appeal No. 10424 of 2024] [Certified Free Copy]
NCLAT (2024.03.01) in Chanderpati Vs. Soni Realtors Pvt. Ltd. & Ors. [Company Appeal (AT) (Insolvency) No. 691 of 2023 & I.A. No.2302, 2303 of 2023]
NCLAT (2023.12.12) in Mathew Mylakulath Jose Vs. Kizhakkekara Kuriakose Jose, [Company Appeal (AT) (CH) (Ins.) No. 233 / 2023 ]
NCLAT (2023.10.11) in Raiyan Hotels and Resorts Pvt. Ltd. Vs. Unrivalled Projects Pvt. Ltd. [Company Appeal (AT) (Insolvency) No. 588 & 1071 of 2023 & I.A. No.3694 of 2023]
SCI(2023.05.01) In Sanket Kumar Agarwal & Anr Vs. APG Logistics Pvt. Ltd. [Civil Appeal No. 748 of 2023]
NCLAT (2023.01.12) in M/s. Platinum Rent A Car (India) Pvt. Ltd. Vs. M/s. Quest Offices Ltd. [Condone Delay IA No. 1138/2022 in Comp App (AT) (CH) (Ins) No.448/2022]
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1). NCLAT (2025.02.25) in Dhanlaxmi Bank Ltd. Vs. Ritu Rastogi (RP) and Ors. [(2025) ibclaw.in 148 NCLAT, I.A. No.7598 of 2024 in Company Appeal (AT) (Insolvency) No. 2131 of 2024], held that;
Hon’ble Supreme Court in Collector, Land Acqisition, Anantnag & Anr. Vs. MST Katiji & Ors. in (1987) 2 SCC 107, that every day’s delay must be explained in a rational and pragmatic manner.
It is to be noted that IBC is a self-contained code and has a time bound mechanism for all proceedings to be completed. It prescribes certain time limit within which the appeal has to be filed and if it is not filed within that time period, the Appellate Authority does not have any statutory power to condone the delay beyond that time period.
that the delay in refiling can be condoned only if the Tribunal is satisfied that there was reasonable and justifiable cause for not refiling the appeal on time.
Rule 14 of the NCLAT Rules, 2016 which deals with Power to exempt1, provides a mandate to this Hon’ble Appellate Authority to exempt compliance with any requirement of the rules prescribed only in situations where sufficient cause has been shown, in the interest of justice.
To condone the delay, the Appellant has to carefully explain each day’s delay in filing/re-filing the appeal.
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2). NCLAT (2025.02.21) in BSE Ltd. Vs. Mrudula Brodie & Ors. [(2025) ibclaw.in 144 NCLAT, Company Appeal (AT) (Insolvency) No. 1862 & 1883 of 2024 & IA No.6846 of 2024 with IA No.6950 of 2024], held that;
Question No.1 need to be answered holding that 15 days condonable period, even if it is coming to an end on a day, when the Tribunal is closed, the benefit of Rule 3 or Section 4 of the Limitation Act cannot be extended.
We, thus, answer Question No.2 holding that for computing 30 days period for filing the Appeal under Section 61, if the office of the Tribunal is closed on the 30th day, the period shall extend upto the date on which the Tribunal re-opens.
Whether the application filed for condonation of delay is within the condonable period, is the first question to consider.. . . . .We, thus, are satisfied that delay condonation application being IA No.6846 of 2024 being filed within condonable period and there being sufficient cause being shown for condonation of the delay, the delay condonation application deserves to be allowed and the Applicant has made out sufficient cause for condonation of the delay.
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3). SCI (2024.09.27) in State Bank of India Vs. India Power Corporation Ltd. [(2024) ibclaw.in 255 SC, Civil Appeal No. 10424 of 2024] held that;
Rule 50 of the NCLT Rules governs the furnishing of certified copies. Rule 50 indicates that the Registry shall send a certified copy of the final order which has been passed to the parties concerned free of cost
The important point to note is that both the certified copy which is provided free of cost as well as the certified copy which is made on an application in that behalf are treated as certified copies for the purposes of Rule 50
It is in this context that this Court in paragraph 23 of its decision (extracted above) observed that the mandate of a free copy was not to enable litigants to take “two bites at the apple where they could compute limitation from either when the certified copy is received on the litigant’s application or received as a free copy from the Registry —whichever is later”. This Court, therefore, held that parties could not automatically dispense with their obligation to apply for and obtain a certified copy for filing an appeal.
Both the certified copy which is made available free of cost as well as the certified copy which is made available on the payment of costs, are treated as certified copies for the purpose of Rule 50. A litigant who does not apply for a certified copy cannot then fall back and claim that he was awaiting the grant of a free copy to obviate the bar of limitation. This was the position in the decision of this Court in V Nagarajan.
The provisions of Rule 50 of the NCLT Rules place both the free certified copy as well as the certified copy which is applied for on payment of fees on the same footing. The appeal in the present case was filed within the condonable period of 15 days, which should have been condoned.
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4). NCLAT (2024.03.01) in Chanderpati Vs. Soni Realtors Pvt. Ltd. & Ors. [Company Appeal (AT) (Insolvency) No. 691 of 2023 & I.A. No.2302, 2303 of 2023] held that;
(i) the period of limitation is to be reckoned from the date of pronouncement of the order in the cases covered by the Code
(ii) It is mandatory to annex the certified copy of the impugned order with the memorandum of appeal
(iii) the Tribunal may exempt the parties from compliance with the procedural requirement in the interest of substantial justice as reiterated in Rule 14
(iv) There is no automatic exemption where the litigants makes no efforts to pursue a timely resolution of their grievance.
(v) The Appellant having failed to apply for a certified copy, rendered the appeal filed before the NCLAT as clearly barred by limitation.
(vi) It is not open to the person aggrieved under the Code to await the receipt of free certified copy under Section 420(3) of the Act r/w Rule 50 and prevent limitation from running
(vii) Litigant has to file the appeal within 30 days which can be extended upto a period of 15 days on showing sufficient cause which cannot be condoned thereafter
(viii) Limitation cease to run from the date of -e-filing
(ix) In order to take advantage of Section 12(2) of the Act 1963, certified copy has to be applied during the currency of the period prescribed for filing an appeal. .
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5). NCLAT (2023.12.12) in Mathew Mylakulath Jose Vs. Kizhakkekara Kuriakose Jose, [Company Appeal (AT) (CH) (Ins.) No. 233 / 2023 ] held that;
Meaning thereby, if the appeal is filed on 46th day then the application cannot be entertained by the Tribunal as it has been held that such delay cannot be condoned by resorting even to Article 142 of the Constitution of India.
Hon’ble Supreme Court has also held that sufficient cause should be an explanation and not an excuse,
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6). NCLAT (2023.10.11) in Raiyan Hotels and Resorts Pvt. Ltd. Vs. Unrivalled Projects Pvt. Ltd. [Company Appeal (AT) (Insolvency) No. 588 & 1071 of 2023 & I.A. No.3694 of 2023] held that;
A person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the “time requisite” for obtaining a copy is to be excluded. However, the time taken by the court to prepare the decree or order before an application for a copy is made cannot be excluded.
It cannot be said that the right to receive a free copy under Section 420(3) of the Companies Act obviated the obligation on the appellant to seek a certified copy through an application.
As such, an appeal will have to be preferred within a period of thirty days from the date on which the order was passed by NCLT. However, if NCLAT is satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days, it may allow an appeal to be filed within a further period of fifteen days.
As such, the normal period of limitation prescribed under the I&B Code is thirty days, with a provision for allowing the filling of an appeal within a further period of fifteen days, if NCLAT is satisfied, that there was a sufficient cause for not filing the appeal within thirty days.”
The limitation for filing an Appeal under Section 61 shall commence from the date when the order is pronounced and not from the date when aggrieved party or Appellant claims to have knowledge of the contents of the order.
Appeal has been filed on 11.03.2023 even after giving exclusion of 3 days, period of 45 days shall come to an end by 02.03.2023, hence, the appeal has been filed with a delay of more than 15 days after expiry of limitation. Our jurisdiction to condone the delay is limited to 15 days, we are unable to condone the delay in filing the appeal.
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7). Supreme Court (2023.05.01) In Sanket Kumar Agarwal & Anr Vs. APG Logistics Pvt. Ltd. [Civil Appeal No. 748 of 2023] held that;
The Court held that limitation commences once the order was pronounced and the time taken by the court to provide the appellant with a certified copy would be excluded, as clarified in Section 12(2) of the Limitation Act 1963, if the appellant had applied for a certified copy within the prescribed period of limitation under Section 61(2) of the IBC.
Any delay in receipt of a certified copy, once an application has been filed, has been envisaged by the legislature and duly excluded to not cause any prejudice to a litigant’s right to appeal.
A person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the “time requisite” for obtaining a copy is to be excluded.
Rule 14 of the NCLAT Rules empowers NCLAT to exempt parties from compliance with the requirement of any of the rules in the interests of substantial justice, which has been typically exercised in favour of allowing a downloaded copy in lieu of a certified copy.
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8). NCLAT (2023.01.12) in M/s. Platinum Rent A Car (India) Pvt. Ltd. Vs. M/s. Quest Offices Ltd. [Condone Delay IA No. 1138/2022 in Comp App (AT) (CH) (Ins) No.448/2022] held that;
Be that as it may, the ‘Appellate Tribunal’ has no ‘power’ to condone the ‘Delay’ after 30 + 15 = ‘45 Days’ and in the instant Comp App (AT) (CH) (Ins) No.448/2022 came to be filed on 55th day,
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’.
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