The Delhi National Company Law Appellate Tribunal (NCLAT) held that there was no need to file application for condonation of delay as since Supreme Court extended limitation.
The appellant, M/s. Essjay Ericsson Private Limited has been filed against the judgment and order dated 08.06.2021 in Company Application passed by the by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench by which Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (I&B Code) by the Appellant has been rejected.
The Respondent at very outset contended that this Appeal is barred by time and should be rejected on the ground of delay. No Application for condonation of delay has been filed by the Appellant. Learned Counsel submitted that the impugned judgment was passed on 08.06.2021 and this Appeal has been filed on 02.09.2021 i.e. much after expiry of limitation for filing an Appeal.
The issue raised was whether judgment and order of the Supreme Court passed in Suo Motu Writ Petition shall operate as automatic extension of the limitation and whether for taking benefit of judgment of the Hon’ble Supreme Court passed in Suo Motu Writ Petition No. 3 of 2020, an Applicant has to file an Application for condonation under Section 5 of the Limitation Act, 1963 and satisfy the Court/ Tribunal that sufficient cause has been made out for condonation of delay.
The coram headed by the Chairperson, Justice Ashok Bhushan, and Justice Jarat Kumar Jain, Dr. Alok Srivastava held that observations of the Delhi High Court in paragraphs 13 and 15 which are relied by the Counsel for the Respondent for contending that the Appellant before us has to file an Application under Section 5 of the Limitation Act and it is the discretion of the Court/ Tribunal to condone the delay or not, cannot be accepted. When the limitation has been extended by the Supreme Court in the orders for a period covering extension of limitation neither application is required nor there is any discretion of Court or Tribunal to consider sufficiency of delay.
“We are of the view that unless the observations of the Delhi High Court in paragraphs 13 and 15 are not read to be with regard to period not covered by Supreme Court Judgment, the said observations shall be clearly in conflict with direction of the Hon’ble Supreme Court and cannot be held to be correct law,” the NCLAT said.
“In the present case, the impugned judgment passed on 08.06.2021 and Appeal having been filed on 02.09.2021, both dates being fully covered within the order dated 08.03.2021 and last order dated 23.09.2021, there was no requirement of filing an Application for condonation of delay by the Appellant and the Appeal cannot be held to be barred by time. We, thus, overrule the objection raised by the Counsel for the Respondent and hold the Appeal to be within time,” the NCLAT said.
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