ONE PAGE # 26 – In the matter of M/s Infinity Fab Engineering Company Pvt Ltd
Claim from PF Dept after liquidation order is passed & proceeds are distributed
Court: NCLT Blr & NCLAT Chennai Bench-IA#72 in 31/2021 Dt 09.04.2021
1. Facts of the Case:
a. Sec 9 application got admitted on 20.02.2018; CD after the CIRP went into Liquidation, assets were sold and proceeds were disbursed to the secured financial creditors.
b. Appellant, Asst. PF Commissioner, states that he was not made party to the proceedings before NCLT and he was not informed about the order dt 22.11.2019 in IA 543/2019 passed by NCLT (on Liq final Report). He was kept in dark about the ongoing status of the case and he came to know the status in May 2020 from online portal of NCLT. Requested NCLAT to condone the delay and consider its grievance.
2. Case Laws:
a. SC in Suo motu WP (Civil 3 of 2020) 23.03.2020:Extended the limitation as applicable under General Law and Special Laws whether condonable or not wef 15.03.2020 till further orders.
b. SC in Suo motu WP (Civil 3 of 2020) 08.03.2021:
i. In computing period of limitation for any suit, appeal, application or proceeding, period from 15.03.20 to 14.03.21 shall be excluded & balance period of limitation remaining as on 15.03.2020, if any, shall become available from 14.03.2021.
ii. In cases where the limitation has expired between 15.03.2020 to 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021 and if the actual period of balance is more than 90 days, that longer period shall apply.
iii. This exclusion of period applies to Sec 23(4) and 29A of Arbitration and Conciliation Act, Sec 12A of Commercial Courts Act and Proviso (b) & (c) of Negotiable Instruments Act and any other law which prescribe period of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
C. Mobilox Innovations Pvt Ltd V Kirusa Software Pvt Ltd (SC):An appeal can be filed at NCLAT u/s 61 of Code within 30days of the order of NCLT with an extension of 15days further and no more.
D. Director General of Income Tax (Admn. TPS) V Spartek Ceramic I Ltd (NCLAT) :As per Sec 61(2) appeal is required to be filed within 30 days before NCLAT. NCLAT is empowered to condone the delay of another 15 days after expiry of 30 day that too for sufficient cause. It has no power to condone the delay if appeal is preferred beyond 15 days after expiry of 30 days. Thus, no appeal u/s 61 can be entertained by NCLAT after 45 days.
E. Asst Commissioner (CT) Kakinada Vs Glaxo Smith Kline Health Care Ltd (SC): When there is a statutory command by legislation as regards to limitation and there is the postulate that delay can be condoned for a further period not exceeding 60days; it is based on certain underlined, fundamental general issue of public policy.
3. Judgment: As per Rule 50 of NCLT Rules, Registry shall send certified copy of final orders only to parties concerned, free of cost & in all other cases, orders are available with cost as per schedule of fee. Appellant not being a party, there is no question of Registry sending copy of the impugned order. Impugned order was passed by NCLT on 22.11.2019; Appellant cannot seek assistance of the SC order dated 23.03.2020. Appeal seeking to condone delay of order dt 22.11.2019 in May 2020 is not maintainable in the eye of law, especially after the Appellant himself admitted that it received a mail from the employer stating that the CD was going through CIRP. Appeal is dismissed with no costs.