Limitation U/S 61 Of IBC Is To Be Calculated From Date Of E-Filing, Rules Prevalent When Application Is Considered To Be Applied: NCLAT New Delhi

The National Company Law Appellate Tribunal (NCLAT), Principal Bench, New Delhi, comprising Mr. Justice Rakesh Kumar Jain (Judicial Member), Mr. Naresh Salecha (Technical Member) and Mr. Indevar Pandey (Technical Member), held that the period of limitation for appeal should be counted from the date of e-filing and not from the physical presentation. The tribunal condoned the delay of 3 days in filing the appeal as sufficient cause was shown and it was in accordance with the Standard Operating Procedures (SOPs) in effect at the time of filing. Brief Facts Shree Ganapati Power and Transformers (operational creditor/appellant) challenged an order passed by the NCLT, Kolkata on April 27, 2022 in which a petition under section 9 of the IBC was dismissed against Vijeta Projects and Infrastructure Ltd (corporate debtor/respondent). The appellant received a certified copy of order of the NCLT on May 5, 2022. Thereafter, an appeal was e-filed on May 30, 2022 which was within limitation period but physical copy was presented on June 20, 2022 which was beyond the period of limitation. Contentions It was argued by the appellant that SOP dated October 21, 2022 which permitted computation of period of limitation from the presentation of the appeal, came into force on November 11, 2022 and appeal was e-flied on May 30, 2022. It was further contended that when e-appeal was filed, the SOP dated January 3, 2021 that was in effect at that time permitted the computation of period of limitation from the date of e-filing. Additionally, the SOP dated October 21, 2022 was withdrawn and they were replaced by new SOPs which became effective from December 24, 2022. The new SOP again allowed to compute the period of limitation from the date of e-filing. It was submitted that since the appeal has been taken up after the new SOP, it should govern the appeal. The appellant relied on the Supreme Court Judgment in Sanket Case Kumar Agarwal & Anr. Vs. APG Logistics Pvt. Ltd., 2023 LiveLaw (SC) 406. Per contra, it was argued by the respondent that the period of limitation should be counted from the date presentation of appeal as per Rule 22 of the NCLAT Rules, 2016 and the SOP dated October 21, 2022. Based on this, it was further contended that the appeal was filed after lapse of 54 days from the date of impugned order passed. Section 61 of the IBC only permits 30 days time period to file the appeal which can be extended by 15 days therefore the appeal was time barred. Issue Before NCLAT The issue is thus as to whether the date of limitation is to be counted from the date of e-filing or the date of presentation of appeal? NCLAT's Analysis The NCLAT analysed section 61 of the IBC which provides 30 days time period to file an appeal which may be extended by 15 days on the sufficient cause being shown. The Tribunal also referred to Rule 22 of the NCLAT Rules, 2016 which states that the appeal can be filed physically at the filing counter. However, Rule 103 of the NCLAT Rules prescribes that e-appeal can also be filed and this provision was extensively used during pandemic. The Tribunal further noted various SOPs which were issued during pandemic. It relied on the NCLAT judgment in Sanket Kumar Agrawal & Anr. V. APG Logistics Pvt. Ltd in which it was established that if an e-appeal is filed, it would be within the period of limitation. The Tribunal further referred to the Supreme Court judgment in Somdev Kapoor v. State of West Bengal in which it was held that procedural rules prevalent at the time of considering the appeal should govern it. It was further noted that since the appeal was considered when the SOP that was prevalent allowed the e-filing of appeal and also permitted the computation of period of limitation from that date itself, the appeal was within the period of limitation. It was observed as under: “Since, the appeal has been filed by the Appellant on 30.05.2022 through e-filing and the hard copy was filed on 20.06.2022 though before coming into force the SOP dated 21.10.2022 which has been made effective from 01.11.2022, the SOP dated 21.10.2022 has been withdrawn by SOP dated 24.12.2022 and it has been ordered that limitation is to be counted from the date of e-filing, therefore, in view of the decision of the Hon'ble Supreme Court in the case of Somdev Kappor (Supra) where it has been held that the rules which are prevalent on the date when the application is considered are to be applied and not the date when the application is made, the application having been filed by the Appellant has to be considered in terms of SOP dated 24.12.2022 which is in operation at the time when the application for condonation of delay is being considered”. The NCLAT further observed that: “Thus, in view of the aforesaid discussion, the Hon'ble Appellate Tribunal does not agree with the argument raised by Respondent No. 1 that limitation is to...

Limitation U/S 61 Of IBC Is To Be Calculated From Date Of E-Filing, Rules Prevalent When Application Is Considered To Be Applied: NCLAT New Delhi

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Limitation U/S 61 Of IBC Is To Be Calculated From Date Of E-Filing, Rules Prevalent When Application Is Considered To Be Applied: NCLAT New Delhi

Mohd Malik Chauhan

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