This post is in reference to a recent appearance of Dr. Farrukh Khan at the NCLAT and concerns the issue relating to condonation of delay in refiling of appeal. Before getting into the issue and the arguments, it is pertinent to get into the legal provisions actually dealing with the limitation period of appeal at the NCLAT.

Section 61 of the Insolvency and Bankruptcy Code states as follows:

          “(1) Notwithstanding anything to the contrary contained under the Companies Act, 2013, any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal.

(2) Every appeal Under Sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal:

Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days.”

Hence, if we go by the Literal Interpretation of the above-mentioned provision, we understand that there is a maximum limitation period of 45 days allowed in case of an appeal. In the case of V. Nagarajan v. SKS Ispat and Power Ltd. & Ors.[1], the Supreme Court held as follows:

          “The Court noted that an Appeal being a creature of the statute therefore, the question of limitation for filing appeals under the IBC would have to be answered by construing the provisions of the IBC and the Limitation Act, with the IBC having the overriding effect, as not only is the IBC a complete code in itself but since it prescribes a different period of limitation for filing Appeals, then by virtue of Section 29 of the Limitation Act, the period of limitation prescribed under the IBC shall be deemed to be period prescribed for the purpose of Section 3 of the Limitation Act.”

In the recent case referred to in this post wherein Dr. Farrukh Khan had refiled an appeal after 43 days, the issue was whether limitation for filing an Appeal before NCLAT also governs the period for curing defect in the Appeal and does NCLAT have jurisdiction to condone the delay in refiling of the appeal if it is beyond the limitation prescribed under Section 61. The court placed reliance on several precedents and sought observance of the issue of treating such a delayed refiling as a fresh appeal.