Hon’ble NCLAT referring various judgments has dismissed the appeal for condonation of 209 days in filing of the Appeal.
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Hon’ble Supreme Court held that:
(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision.
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Purni Devi and Anr. Vs. Babu Ram and Anr. – Supreme Court Read Post »
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RCC Infra Ventures Ltd. Vs. Union Bank of India – NCLAT New Delhi Read Post »
In this case, the Appellant (liquidator) challenged the NCLT order in writ petition before High Court and thereafter challenged the decision of High Court to use alternative efficacious remedy, in SLP before Supreme Court. After SLP was dismissed, he challenged the NCLT order in NCLAT jurisdiction urging exclusion on time u/s 14 of Limitation Act.
Hon’ble NCLAT held that:
(i) The order of the Adjudicating Authority may be, in the opinion of the Appellant, illegal but for that matter the Appellant has to prefer an appeal and not the writ petition and then a special leave petition before the Hon’ble Supreme Court even against the order of the Hon’ble High court by which the Appellant was relegated to avail his remedy of appeal and also granted stay till the appeal is filed.
(ii) No merit in the submission of the Appellant for excluding the period under Section 14 of the Act and since the appeal has been filed after the period of 53 days from the date of passing of the impugned order.
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State Bank of India Vs. Dharamraj Aluminium Industries Pvt. Ltd. – NCLAT New Delhi Read Post »
Hon’ble NCLAT held that:
(i) Suit was withdrawn without any liberty from the Court to institute a fresh proceeding and termination of suit cannot be held on ground of defect of jurisdiction on cause of like nature.
(ii) The proceedings under IBC are not proceedings for recovery of contractual dues, as is apparent from the facts of the present case the Operational Creditor has initiated proceeding for recovery of its contractual dues arising out of contract between the parties. Suit for recovery of dues was already filed by the Operational Creditor which was withdrawn by the Operational Creditor.
(iii) It is, however, relevant to notice that withdrawal of the suit was not on the ground contended by the Operational Creditor nor any liberty was granted by the Civil Court to institute a fresh suit nor Operational Creditor at any point of time resorted to the proceeding of arbitration which according to the Operational Creditor was reason for withdrawal of suit.
(iv) Upheld decision of the NCLT Chandigarh Bench.
NCLAT held that Section 22(1) SICA makes it clear that there is a bar for realisation of a right referred to in this Section against the Corporate Debtor when once an enquiry under Section 16 SICA is pending against it or any scheme referred to under Section 17 thereof, is being considered or an Appeal under Section 25 is pending, an exception being with the consent of the Board or that of the Appellate authority. The Hon’ble Apex Court in the matter of ‘Sabarmathi Gas Limited Vs. Shah Alloys Ltd. referred to a three judge Bench Judgment in the matter of ‘KSL & Industries Limited Vs. Arihant Threads Ltd. in which the issue whether a Recovery Application under the RDDB Act, 1963 would lie or be proceeded with against a sick company in view of the bar contained in Section 22(1) of SICA, was addressed to.
Hon’ble Supreme Court held that:
(i) Section 14 will have no application inasmuch as the proceedings under the SARFAESI Act before the DRT cannot be said to be before a Court or Tribunal having no jurisdiction.
(ii) A Secured Creditor would definitely have a right to invoke the power under the SARFAESI Act and the said proceedings cannot be said to be without jurisdiction. Therefore, no benefit under Section 14 of the Limitation Act would be admissible to the Secured Creditor.
(iii) The documents relating to acknowledgement claiming benefit of Section 18 could be accepted even at the appellate stage.
(iv) A settlement offer akin to an OTS proposal would be an acknowledgment of debt for the purpose of Section 18 of Limitation Act.
(v) A balance sheet acknowledging debt is also a document relevant for calculating the limitation.
