Summary
An appeal under Section 61 of the IBC filed on the last day of limitation without a certified copy of the NCLT order, without any application for one and without seeking exemption, was not merely defective but incompetent; the NCLAT erred in condoning the delays in filing and refiling without first examining whether the appeal was validly instituted.
Issues
- Whether the NCLAT could condone the delay in filing and the 150-day delay in refiling an appeal under Section 61 of the IBC that was filed and refiled without a certified copy of the impugned NCLT order.
- Whether an appeal presented without a certified copy, without an application for one before limitation expired and without an exemption application is a curable defective appeal or an incompetent one.
Provisions considered
- Section 61(2) and proviso, Insolvency and Bankruptcy Code, 2016The appeal against approval of the resolution plan was e-filed on the last day of the 30-day period plus the 15 days condonable under the proviso; the Court stressed the strict timelines of the Code and held that filing without even applying for a certified copy meant there was in law no appeal. (¶¶ 4, 5, 9)
- Rule 22(2), National Company Law Appellate Tribunal Rules, 2016Requires every appeal to be accompanied by a certified copy of the impugned order; applying V. Nagarajan, the Court treated the application for a certified copy as a mark of diligence, not a mere technicality, and found the appeal was refiled without one. (¶¶ 7, 8, 10)
- Rules 14 and 15, National Company Law Appellate Tribunal Rules, 2016Exemption from the rules is not automatic; the appellant before the NCLAT never sought exemption from filing the certified copy, which could have been considered under these rules. (¶¶ 7, 10)
- Rule 26(2), National Company Law Appellate Tribunal Rules, 2016Allows only 7 days to cure defects; the appeal was refiled about five months after defects were notified and many defects still remained. (¶ 5)
Held
- Although delay in refiling is ordinarily judged less strictly than delay in filing, an appeal refiled without a certified copy of the impugned order, when Rule 22(2) of the NCLAT Rules requires one, may be defective beyond redemption. (¶¶ 6, 7)
- A diligent litigant must apply for a certified copy of the order before limitation runs out, and only then can claim exclusion of the time taken to obtain it; filing an appeal on the last day of limitation without even applying for a certified copy amounts in law to no filing of an appeal. (¶ 9)
- Where the appellant applied for the certified copy only after refiling and never sought exemption under Rules 14 and 15, the appeal was wholly incompetent rather than merely defective, and the NCLAT should have ascertained whether the appeal was properly instituted before showing indulgence on the delay applications. (¶¶ 8, 10)
- The filing and refiling of the appeal were incurably tainted and the appeal ought to have been rejected at the threshold. (¶ 11)
Result
Appeals allowed; the NCLAT order condoning delay in filing and refiling was set aside; parties to bear their own costs.