IBC | Delay In Re-Filing Defective Appeal After Curing Defects Cannot Be Condoned : Supreme Court

The Supreme Court has observed that once the statutory limitation period of a maximum of 60 days prescribed under Section 62 of the Insolvency & Bankruptcy Code, 2016 for filing an appeal, followed by a period of 28 days to cure the defects in an appeal under the Supreme Court Rules, gets over, then the right to re-appeal stands extinguished. “…no litigant can be permitted to subvert the statutory scheme by seeking condonation of re-filing delay beyond the period of 28 (twenty-eight) days after having initially lodged a defective appeal. Once the window of 60 (sixty) days prescribed by the IBC, followed by the window of 28 (twenty-eight) days in re-filing the appeal upon curing of defects permitted by the SCR is shut, the right to appeal stands extinguished.”, observed a bench of Justice Dipankar Datta and Justice Satish Chandra Sharma. In other words, the Court said: "To sum up our discussion, 45 (forty-five) days is available under subsection (1) of Section 62, IBC from date of receipt of the order of the NCLT to file an appeal involving a substantial question of law before this Court. As per sub-section (2), subject to sufficient cause being shown, the Supreme Court may allow an appeal to be filed within 15 (fifteen) days after the expiry of the said 45 (forty-five) days but not beyond. Curing of defects arising out of a defectively filed appeal under Section 62, IBC is permissible within 28 (twenty-eight) days of notification thereof by the Registry. If the defects are cured within 28 (twenty-eight) days, the appeal would deserve registration upon removal of the “D No.”. However, there being no scope for curing defects after lapse of the period of 28 (twenty-eight) days in respect of an appeal under Section 62, IBC, filing of an application for re-filing delay does not arise.” The appeal arose from an order passed by the National Company Law Appellate Tribunal (NCLAT) on December 8, 2025. The appellant filed the appeal before the Supreme Court with a delay of seven days, still within the additional 15-day condonable period available under Section 62(2) of the IBC. The appeal was marked defective by the Registry. The defects, however, were not cured promptly. Instead, the appeal was re-filed after a further delay of 82 days, accompanied by an application seeking condonation of the re-filing delay. This raised a critical legal question of whether the Supreme Court could condone delay in re-filing an appeal under Section 62 of the IBC when the defects were not cured within the 28-day period contemplated under the Supreme Court Rules, 2013. Dismissing the appeal as being time-barred, the judgment authored by Justice Datta observed that once the maximum 60-day period under Section 62 of the IBC expires, followed by the 28-day period available for curing defects under the Supreme Court Rules, the right to pursue the appeal comes to an end. In such circumstances, no question of condonation arises because the Court lacks jurisdiction to revive a right that has already been extinguished by operation of law. “An appeal under Section 62, IBC does not remain alive after the 28 (twenty-eight) day period allowable under the SCR(Supreme Court Rules) for curing defects and the lis would stand frozen once the defects are not cured within such period. An extended window cannot be granted de hors the legislative intent behind stipulation of the strict timelines in the IBC.”, the court observed. The Court also rejected the Appellant's contention that a defective appeal within limitation should be treated as sufficient compliance with Section 62. The Court observed that an appeal filed with defects remains a defective appeal in the eyes of law and cannot automatically be treated as a properly instituted proceeding merely because it was physically lodged within the limitation period."Can or should a litigant be permitted to circumvent the rigours of limitation by filing a defective appeal as a device to save limitation and, thereafter, to opt to cure the notified defects at leisure? Can or should this Court countenance such a practice? The answers to both questions have to be a resounding 'NO'"According to the Court, accepting such a proposition would permit litigants to evade the legislative mandate by filing incomplete or defective appeals solely to save limitation and then curing defects at their convenience. “To hold otherwise would defeat the object of the IBC and render nugatory the discipline of timelines engrafted both in Section 62 as well as the SCR. Any such practice of filing a defective appeal, if encouraged, could result in a litigant dragging the process of re-filing for months and still being heard on his application for condoning re-filing delay premised on the ground that the IBC says nothing about re-filing delay and that the SCR being a procedural law must be read in a manner to aid the rendering of substantive justice to a party who is shown to be above board.”, the Court observed.Supreme...

IBC | Delay In Re-Filing Defective Appeal After Curing Defects Cannot Be Condoned : Supreme Court

Yash Mittal

The Court also observed that the Supreme Court Rules cannot override the mandate under the IBC.

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IBC | Delay In Re-Filing Defective Appeal After Curing Defects Cannot Be Condoned : Supreme Court

Yash Mittal

The Court also observed that the Supreme Court Rules cannot override the mandate under the IBC.

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

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