NATIONAL SPOT EXCHANGE LTD VS MR. ANIL KOHLI : CASE SUMMARY

The Supreme Court in National Spot Exchange Ltd Vs. Mr. Anil Kohli ( 2021) 7 SCR 2024  held that  considering the statutory provisions which provide that delay beyond 15 days in preferring the appeal is uncondonable, the same cannot be condoned even in exercise of powers under Article 142 of the Constitution of India.

FACTS OF THE CASE

CIRP Proceedings wAS initiated against the Dunar Foods Limited (Corporate Debtor) and IRP was appointed. The Appellant filed claim of Rs. 673.85 Crore before the IRP, which was rejected by the IRP on the ground that there was no privity of contract between the appellant and the corporate debtor and there is no letter of guarantee issued by the Corporate Debtor in favour of the appellant. The rejection was challenged before the NCLT which was rejected vide order dated 06.03.2019.

An appeal was filed before the NCLAT with delay of 44 days beyond 45 days ( 30 days + 15 days). The NCLATT held that it does not have jurisdiction to condone delay beyond 15 days and thereby the appeal is barred by limitation.

Against the same Appeal was filed before the Supreme Court.

FINDINGS OF THE COURT

Section 61 (2) provides limitation period of 30 days for filing appeal before NCLAT. As per proviso to Section 61 (2) of the Code, the Appellate Tribunal may allow an appeal to be filed after expiry of the said period of 30 days if it is satisfied that there was sufficient cause not filing the appeal, but such period shall not exceed 15 days from period of 30 days, as contemplated under Section 61 (2) of the Code.

The Supreme Court noted that Application for certified copy was filed on 8.4.2019 after delay of 34 days, which is beyond prescribed period of limitation. The certified copy was received on 11.04.2019 and appeal was preferred on 24.06.2019 after delay of 44 days. As the Appellate Tribunal can condone the delay up to period of 15 days only, the Appellate Tribunal refused to condone the delay which was beyond 15 days from completion of 30 days.

The Supreme Court relied on Union of India Vs  Popular Constructions Co.  (2001) 8 SCC 470  wherein it was held that Article 34 of Arbitration and Conciliation Act, 1996 provides a limitation which is different from limitation prescribed under the Limitation Act.  Section 5 of the Limitation Act will not be applicable as the Legislature has prescribed a special limitation for the purposes of Appeal as provided under Article 34 of the Arbitration and Conciliation Act.

The Supreme Court also relied on New India Assurance Company Ltd Vs. Hilli Multipurpose Cold Storage Private Ltd. ( 2020) 5 SCC 757  wherein it was held that the District Forum has no jurisdiction and/or power to extend the time of filing of response to the complaint beyond the period of 15 days in addition of 30 days as envisaged under Section 13 (2) (a) of the Consumer Protection Act.

The Supreme Court held that unless Parliament has carved out any exception by provision of law, the period of limitation has to be given effect to.

9. 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 within the extended maximum period of 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 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.

The Supreme Court relied on several judgments including Rohitash Kumar Vs. Om Praskash Sharma (2013) 11 SCC 451 wherein it was held that law overrides equitable considerations.

The Supreme Court also refused to condone the delay invoking its power under Article 142 of the Constitution of India. The Supreme Court observed that what cannot be done directly considering the statutory provisions cannot be done indirectly while exercising the powers under Article 142 of the Constitution of India.

Accordingly, the appeal was dismissed by the Supreme Court.

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