NATIONAL SPOT EXCHANGE LIMITED v. MR. ANIL KOHLI, RESOLUTION PROFESSIONAL FOR DUNAR FOODS LIMITED

Judgment

1024 SUPREME COURT REPORTS [2021] 7 S.C.R. 1024 [2021] 7 S.C.R. A B C D E F G H NATIONAL SPOT EXCHANGE LIMITED v. MR. ANIL KOHLI, RESOLUTION PROFESSIONAL FOR DUNAR FOODS LIMITED (Civil Appeal No. 6187 of 2019) SEPTEMBER 14, 2021 [M. R. SHAH AND ANIRUDDHA BOSE, JJ.] Insolvency and Bankruptcy Code, 2016 – s.61(2) – Appeals and Appellate Authority – In response to the public announcement by Interim Resolution Professional (IRP) inviting the claims from the creditors of the corporate debtor, the appellant submitted claim of Rs.673.85 crores – The IRP rejected the claim of the appellant on the ground that there was no privity of contract between the appellant and the corporate debtor and no letter of guarantee was issued by the corporate debtor in favour of the appellant – Appellant challenged the rejection before the National Company Law Tribunal (NCLT), which upheld the decision of the IRP – Aggrieved, the appellant preferred appeal before the National Company Law Appellate Tribunal (NCLAT) – There was a delay of 44 days in preferring the said appeal – The NCLAT dismissed the appeal on the ground that Appellate Tribunal has no jurisdiction to condone the delay beyond 15 days from 30 days and appeal is barred by limitation – On appeal, held: As per s.61(2) of the IB Code, the appeal is required to be preferred within a period of 30 days – The Appellate Tribunal may allow an appeal to be filed beyond the period of 30 days, if it is satisfied that there was sufficient cause for not filing the appeal, but such period shall not exceed 15 days – So, the appeal before the NCLAT was required to be filed within a maximum period of 45 days (30 days + 15 days) – However, in the instant case there was delay of 44 days beyond a total period of 45 days – It is settled legal position that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the Statute so prescribes – The Court has no power to extend the period of limitation on equitable grounds – It cannot be said that the NCLAT has committed any error in dismissing the appeal on the ground of limitation by observing that it has no jurisdiction and/or power to condone the delay exceeding 15 days. 1024 NATIONAL SPOT EXCHANGE LTD. v. MR. ANIL KOHLI, RESOLUTION PROFESSIONAL FOR DUNAR FOODS LTD. 1025 Dismissing the appeal, the Court HELD: 1. At the outset, it is required to be noted that the appellant herein has challenged the order passed by the adjudicating authority dated 6.3.2019 affirming the decision of the resolution professional of rejection of the claim of the appellant before the NCLAT. The appeal preferred before the NCLAT was under Section 61(2) of the IB Code. As per Section 61(2) of the IB Code, the appeal was required to be preferred within a period of thirty days. Therefore, the limitation period prescribed to prefer an appeal was 30 days. However, as per the proviso to Section 61(2) of the Code, the Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of 30 days if it is satisfied that there was sufficient cause for not filing the appeal, but such period shall not exceed 15 days. Therefore, the Appellate Tribunal has no jurisdiction at all to condone the delay exceeding 15 days from the period of 30 days, as contemplated under Section 61(2) of the IB Code. [Para 7][1034-A-D]

#2. In the present case, even the appellant applied for the certified copy of the order passed by the adjudicating authority on 8.4.2019, i.e., after a delay of 34 days. Therefore, even the certified copy of the order passed by the adjudicating authority was applied beyond the prescribed period of limitation, i.e., beyond 30 days. The certified copy of the order was received by the appellant on 11.04.2019 and the appeal before the NCLAT was preferred on 24.06.2019, i.e., after a delay of 44 days. As the Appellate Tribunal can condone the delay up to a period of 15 days only, the Appellate Tribunal refused to condone the delay which was beyond 15 days from completion of 30 days, i.e., in the present case delay of 44 days and consequently dismissed the appeal. Therefore, as such, it cannot be said that the learned Appellate Tribunal committed any error in not condoning the delay of 44 days, which was beyond the delay of 15 days which cannot be condoned as per Section 61(2) of the IB Code. [Para 7.1][1034- F-H; 1035-A]

#3. It is true that in a given case there may arise a situation where the applicant/appellant may not be in a position to file the appeal even within a statutory period of limitation prescribed under the Act and even within the extended maximum period of A B C D E F G H 1026 SUPREME COURT REPORTS [2021] 7 S.C.R. appeal which could be condoned owing to genuineness, viz., illness, accident etc. However, under the statute, the Parliament has not carved out any exception of such a situation. Therefore, in a given case, it may cause hardship, however, unless the Parliament has carved out any exception by a provision of law, the period of limitation has to be given effect to. Such powers are only with the Parliament and the legislature. The courts have no jurisdiction and/or authority to carve out any exception. If the courts carve out an exception, it would amount to legislate which would in turn might be inserting the provision to the statute, which is not permissible. [Para 9][1036-C-E]

#4. It is also required to be noted that the appellant has fairly conceded that considering Section 61(2) of the IB Code, the Appellate Tribunal has jurisdiction or power to condone the delay not exceeding 15 days from the completion of 30 days, the statutory period of limitation. However, has requested and prayed to condone the delay in exercise of powers under Article 142 of the Constitution of India, in the facts and circumstances of the case and submitted that the amount involved is a very huge amount and that the appellant is a public body. What cannot be done directly considering the statutory provisions cannot be permitted to be done indirectly, while exercising the powers under Article 142 of the Constitution of India. [Para 11][1039-G-H; 1040-A-B] Union of India v. Popular Construction Co., (2001) 8 SCC 470 : [2001] 3 Suppl. SCR 619; Rohitash Kumar v. Om Prakash Sharma, (2013) 11 SCC 451 : [2012] 13 SCR 47; Raghunath Rai Bareja v. Punjab National Bank, (2007) 2 SCC 230 : [2006] 10 Suppl. SCR 287; Oil & Natural Gas Corporation Limited v. Gujarat Energy Transmission Corporation Limited, AIR 2017 SC 1352 : [2017] 2 SCR 922; Teri Oat Estates (P) Ltd. v. U.T. Chandigarh, (2004) 2 SCC 130 : [2003] 6 Suppl. SCR 1235 – relied on.