Whether in appeal to Supreme Court (against NCLAT Order) the delay in refiling the can be condoned beyond 28 days?
Whether
in appeal to Supreme Court (against NCLAT Order) the delay in refiling the can
be condoned beyond 28 days?[1]
Shubham
Budhiraja[2]
1.
The scheme of limitation under the IBC is
a strict and time-bound one. The concept of condonation of delay itself is
alien to the statutory framework beyond the period expressly contemplated under
the statute. Section 62 of the IBC permits an appeal to be filed before this
Court within 45 (forty-five) days, with a further grace period of only 15
(fifteen) days, and that too, only upon sufficient cause being shown. Thus, the
outer limit statutorily permissible is 60
(sixty) days, beyond which the appeal itself becomes barred and the Court’s
jurisdiction to condone the delay ceases.
2.
Any appeal which is not filed within the
stipulated period in a form shorn of defects, for all practical and legal
purposes, remains a defective appeal.
3.
Any 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 Supreme Court Rules 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.
4.
Consequently, 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.
5.
The 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.
6.
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.”.
7.
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. Consequently, no
question of condonation of delay [even for a day beyond 60 (sixty) days (in
case of an appeal which, apart from the little delay in filing beyond 45
(forty-five days), is otherwise defect-free) and 28 (twenty-eight) days (in
case of a defective appeal)] arises for consideration.
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