Summary
An appeal under Section 62 of the Insolvency and Bankruptcy Code, 2016 must be filed free of defects within the 45-day period plus the 15-day grace period. Defects in such an appeal must be cured within the 28 days allowed by the Supreme Court Rules, 2013, and the Court has no power to condone re-filing delay beyond that. The liquidator's appeal, filed 7 days late and re-filed after a further 82 days, was dismissed as time-barred.
Issues
- Whether the Supreme Court can condone delay in re-filing an appeal under Section 62 of the IBC when the defects are not cured within the 28 days permitted by the Supreme Court Rules, 2013.
- Whether the appellant's status as liquidator, or an earlier condonation of re-filing delay before the NCLAT in the same litigation, justifies a liberal approach or the exercise of power under Article 142.
- Whether sufficient cause was shown for the delay in filing and in re-filing the appeal.
Provisions considered
- Section 62(1) and (2), Insolvency and Bankruptcy Code, 2016Read as allowing an appeal within 45 days of receipt of the order, extendable on sufficient cause by not more than 15 days; the Court held that 60 days is the outer limit, beyond which its power to condone delay ceases, and that Section 62 is a complete code for such appeals. (¶¶ 3, 4, 5, 15, 18, 25, 28)
- Order VIII Rule 6(3) and (4), Supreme Court Rules, 2013These sub-rules allow 28 days to cure defects and otherwise permit re-filing with an application to condone the re-filing delay; the Court held that, as subordinate legislation, they cannot override the IBC's timelines, so a Section 62 appeal not cured within 28 days lapses. (¶¶ 10, 17, 18, 25)
- Article 142, Constitution of IndiaThe Court declined to invoke Article 142 to dilute the IBC's express timeframes merely because the appellant is a liquidator acting for all stakeholders, since the IBC sets no different threshold for such officers. (¶ 19)
Held
- Limitation under the IBC is strict and time-bound. Section 62 allows 45 days and a further grace period of not more than 15 days on sufficient cause, so 60 days is the outer limit; beyond it the appeal is barred and the Court cannot condone the delay. (¶¶ 4, 5, 6, 7, 8, 9)
- To be regarded as instituted within the prescribed period, an appeal under Section 62 must be free of defects and capable of being listed immediately; an appeal not filed within time in a defect-free form remains a defective appeal. A litigant cannot save limitation by filing a defective appeal and curing the defects at leisure. (¶¶ 15, 16)
- Defects in a Section 62 appeal may be cured within 28 days of their notification by the Registry. Once the 60-day window under the IBC and the 28-day window under the Supreme Court Rules have closed, the right to appeal is extinguished, no application for condonation of re-filing delay lies, and the Supreme Court Rules, being subordinate legislation, cannot override the IBC. The lenient standard for re-filing delay applies to general laws such as the procedural codes, not to Section 62. (¶¶ 17, 18, 25)
- The appellant's position as a liquidator acting for the benefit of stakeholders is not a ground to invoke Article 142 to override the IBC's express timelines, since the Code sets no separate threshold for such officers and words cannot be read into it. (¶ 19)
- The earlier decision in the same litigation condoning re-filing delay before the NCLAT under Section 61 was confined to its own facts, turned on lapses attributable to counsel, and was stated not to be a precedent. A litigant who has once obtained indulgence cannot expect serial condonations at successive appellate stages. (¶¶ 20, 21, 22, 23, 24)
- Where the statute erects a jurisdictional bar, the adequacy of the cause shown need not be examined; in any event, the explanation offered, an internal oversight in the liquidator's office, did not show sufficient cause for the delay in filing or re-filing. (¶¶ 26, 27)
Result
Appeal dismissed as time-barred, having been filed beyond the maximum period condonable under the IBC; applications for condonation of delay in filing and re-filing, and other connected applications, dismissed.