Case Note & Summary
The appeal arises under Section 62 of the Insolvency and Bankruptcy Code, 2016 (IBC) from a judgment dated 9 January 2023 of the National Company Law Appellate Tribunal (NCLAT). The NCLAT dismissed the appeal against the order of the National Company Law Tribunal (NCLT) on the ground of limitation. The appellant, Sanket Kumar Agarwal & Anr, instituted an application under Section 7 of the IBC in June 2021 seeking initiation of the Corporate Insolvency Resolution Process against the respondent, APG Logistics Private Limited. The application was dismissed by the NCLT by an order dated 26 August 2022. On 2 September 2022, the appellant filed an application for obtaining a certified copy of the order, which was received by the Registry of NCLT on 5 September 2022. On 15 September 2022, the order was uploaded on the website of the NCLT and a certified copy was provided to the appellant on the same day. The appellant lodged an appeal before the NCLAT on 10 October 2022 in the e-filing mode along with an Interlocutory Application seeking condonation of delay of five days. A physical copy of the appeal was filed on 31 October 2022. The appellant submitted that the appeal had been filed within the period of limitation from the date the order was made available in the public domain i.e., 15 September 2022. However, as a matter of abundant precaution, the appellant had considered 26 August 2022 to be the date from which limitation would commence. The appellant stated that the prescribed time period of 30 days for filing the appeal ended on 5 October 2022, after accounting for the exclusion of 10 days (from 5 September 2022 to 15 September 2022 on account of the time taken to provide a certified copy). The appellant submitted that the inadvertent delay of 5 days in filing the appeal had been caused due to the additional time needed to obtain legal advice, collate documents and connect with counsel during the festive season. The NCLAT held that the appeal was barred by limitation on the ground that it was instituted on the 46th day following the order of the NCLT, exceeding the outer limit of 45 days. The Supreme Court allowed the appeal, holding that the period of limitation for filing an appeal under Section 61(2) of the IBC commences from the date the order is uploaded on the website of the NCLT, not from the date of pronouncement. The time taken to provide a certified copy is to be excluded. The NCLAT erred in computing limitation from the date of pronouncement without considering the date of uploading. The appeal was filed within the permissible period, and the delay of 5 days was condonable.
Headnote
A) Limitation - Commencement of Limitation for Appeal under IBC - Section 61(2) of the Insolvency and Bankruptcy Code, 2016 - The period of limitation for filing an appeal under Section 61(2) of the IBC commences from the date the order is uploaded on the website of the NCLT, not from the date of pronouncement. The time taken to provide a certified copy is to be excluded. The NCLAT erred in computing limitation from the date of pronouncement (26.08.2022) without considering the date of uploading (15.09.2022). (Paras 1-7) B) Limitation - Condonation of Delay - Section 61(2) of the Insolvency and Bankruptcy Code, 2016 - The NCLAT has the power to condone a delay of up to 15 days beyond the 30-day period if sufficient cause is shown. The outer limit of 45 days (30+15) is the maximum period within which an appeal can be filed. In this case, the appeal was filed on 10.10.2022, which was within 45 days from the date of uploading (15.09.2022), and the delay of 5 days was condonable. (Paras 4-7)
Issue of Consideration
Whether the period of limitation for filing an appeal under Section 61(2) of the Insolvency and Bankruptcy Code, 2016 commences from the date of pronouncement of the order or from the date the order is made available in the public domain, and whether the time taken to provide a certified copy is to be excluded.
Final Decision
The Supreme Court allowed the appeal, set aside the order of the NCLAT, and remanded the matter to the NCLAT for hearing on merits. The Court held that the period of limitation for filing an appeal under Section 61(2) of the IBC commences from the date the order is uploaded on the website of the NCLT, not from the date of pronouncement. The time taken to provide a certified copy is to be excluded. The appeal was filed within the permissible period, and the delay of 5 days was condonable.
Law Points
- Limitation for appeal under Section 61(2) IBC runs from date of uploading of order on NCLT website
- not from date of pronouncement
- time taken to provide certified copy is excluded
- NCLAT erred in computing limitation from date of pronouncement
