NATIONAL SPOT EXCHANGE LIMITED versus MR. ANIL KOHLI, RESOLUTION PROFESSIONAL FOR DUNAR FOODS LIMITED
[2021] 7 S.C.R. 1024, Supreme Court of India, 2021
Outcome: Dismissed (Dismissed)
Segment: Ratio
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1024
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[2021] 7 S.C.R.
NATIONAL SPOT EXCHANGE LIMITED
v.
MR. ANIL KOHLI, RESOLUTION PROFESSIONAL FOR
DUNAR FOODS LIMITED
(Civil Appeal No. 6187 of 2019)
SEPTEMBER 14, 2021
[M. R. SHAH AND ANIRUDDHA BOSE, JJ.]
Insolvency and Bankruptcy Code, 2016 – s.61(2) – Appeals
and Appellate Authority – In response to the public announcement
by Interim Resolution Professional (IRP) inviting the claims from
the creditors of the corporate debtor, the appellant submitted claim
of Rs.673.85 crores – The IRP rejected the claim of the appellant
on the ground that there was no privity of contract between the
appellant and the corporate debtor and no letter of guarantee was
issued by the corporate debtor in favour of the appellant – Appellant
challenged the rejection before the National Company Law Tribunal
(NCLT), which upheld the decision of the IRP – Aggrieved, the
appellant preferred appeal before the National Company Law
Appellate Tribunal (NCLAT) – There was a delay of 44 days in
preferring the said appeal – The NCLAT dismissed the appeal on
the ground that Appellate Tribunal has no jurisdiction to condone
the delay beyond 15 days from 30 days and appeal is barred by
limitation – On appeal, held: As per s.61(2) of the IB Code, the
appeal is required to be preferred within a period of 30 days – The
Appellate Tribunal may allow an appeal to be filed beyond the period
of 30 days, if it is satisfied that there was sufficient cause for not
filing the appeal,
but such period shall not exceed 15 days – So,
the appeal before the NCLAT was required to be filed within a
maximum period of 45 days (30 days + 15 days) – However, in the
instant case there was delay of 44 days beyond a total period of 45
days – It is settled legal position that the law of limitation may harshly
affect a particular party but it has to be applied with all its rigour
when the Statute so prescribes – The Court has no power to extend
the period of limitation on equitable grounds – It cannot be said
that the NCLAT has committed any error in dismissing the appeal
on the ground of limitation by observing that it has no jurisdiction
and/or power to condone the delay exceeding 15 days.
[2021] 7 S.C.R. 1024
1024
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Dismissing the appeal, the Court
HELD: 1. At the outset, it is required to be noted that the
appellant herein has challenged the order passed by the
adjudicating authority dated 6.3.2019 affirming the decision of
the resolution professional of rejection of the claim of the appellant
before the NCLAT. The appeal preferred before the NCLAT was
under Section 61(2) of the IB Code. As per Section 61(2) of the
IB Code, the appeal was required to be preferred within a period
of thirty days. Therefore, the limitation period prescribed to prefer
an appeal was 30 days. However, as per the proviso to Section
61(2) of the Code, the Appellate Tribunal may allow an appeal to
be filed after the expiry of the said period of 30 days if it is satisfied
that there was sufficient cause for not filing the appeal, but such
period shall not exceed 15 days. Therefore, the Appellate Tribunal
has no jurisdiction at all to condone the delay exceeding 15 days
from the period of 30 days, as contemplated under Section 61(2)
of the IB Code. [Para 7][1034-A-D]
2. In the present case, even the appellant applied for the
certified copy of the order passed by the adjudicating authority
on 8.4.2019, i.e., after a delay of 34 days. Therefore, even the
certified copy of the order passed by the adjudicating authority
was applied beyond the prescribed period of limitation, i.e., beyond
30 days. The certified copy of the order was received by the
appellant on 11.04.2019 and the appeal before the
NCLAT was
preferred on 24.06.2019, i.e., after a delay of 44 days. As the
Appellate Tribunal can condone the delay up to a period of 15
days only, the Appellate Tribunal refused to condone the delay
which was beyond 15 days from completion of 30 days, i.e., in the
present case delay of 44 days and consequently dismissed the
appeal. Therefore, as such, it cannot be said that the learned
Appellate Tribunal committed any error in not condoning the delay
of 44 days, which was beyond the delay of 15 days which cannot
be condoned as per Section 61(2) of the IB Code. [Para 7.1][1034-
F-H; 1035-A]
3. 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 even within the extended maximum period of
NATIONAL SPOT EXCHANGE LTD. v. MR. ANIL KOHLI, RESOLUTION
PROFESSIONAL FOR DUNAR FOODS LTD.
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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 the
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. [Para 9][1036-C-E]
4. It is also required to be noted that the appellant has
fairly conceded that considering Section 61(2) of the IB Code,
the Appellate Tribunal has jurisdiction or power to condone the
delay not exceeding 15 days from the completion of 30 days, the
statutory period of limitation. However, has requested and prayed
to condone the delay in exercise of powers under Article 142 of
the Constitution of India, in the facts and circumstances of the
case and submitted that the amount involved is a very huge amount
and that the appellant is a public body. What cannot be done
directly considering the statutory provisions cannot be permitted
to be done indirectly, while exercising the powers under Article
142 of the Constitution of India. [Para 11][1039-G-H;
1040-A-B]
Union of India v. Popular Construction Co., (2001) 8
SCC 470 : [2001] 3 Suppl. SCR 619; Rohitash Kumar
v. Om Prakash Sharma, (2013) 11 SCC 451 : [2012]
13 SCR 47; Raghunath Rai Bareja v. Punjab National
Bank, (2007) 2 SCC 230 : [2006] 10 Suppl. SCR 287;
Oil & Natural Gas Corporation Limited v. Gujarat
Energy Transmission Corporation Limited, AIR 2017
SC 1352 : [2017] 2 SCR 922; Teri Oat Estates (P) Ltd.
v. U.T. Chandigarh, (2004) 2 SCC 130 : [2003] 6 Suppl.
SCR 1235 – relied on.
Chitra Sharma v. Union of India, (2018) 18 SCC 575 :
[2018] 12 SCR 1044; Jaiprakash Associates Limited v.
IDBI Bank Limited, (2020) 3 SCC 328 : [2019] 14 SCR
312; Reliance General Insurance Co. Ltd. v. Mampee
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Timbers and Hardwares Pvt. Ltd., (2021) 3 SCC 673;
New India Assurance Company Limited v. Hilli
Multipurpose Cold Storage Private Limited, (2020) 5
SCC 757; CMD/Chairman, Bharat Sanchar Nigam
Limited v. Mishri Lal, (2011) 14 SCC 739 : [2011] 5
SCR 317; Popat Bahiru Goverdhane v. Special Land
Acquisition Officer, (2013) 10 SCC 765 : [2013] 8 SCR
241; The Martin Burn Limited v. The Corporation of
Calcutta, AIR 1966 SC 529 : [1966] SCR 543; J.J.
Merchant v. Shrinath Chaturvedi, (2002) 6 SCC 635 :
[2002] 1 Suppl. SCR 469 – referred to.
Case Law Reference
[2018] 12 SCR 1044
referred to
Para 5.4
[2019] 14 SCR 312
referred to
Para 5.4
[2012] 13 SCR 47
relied on
Para 6.3
[2011] 5 SCR 317
referred to
Para 6.3
[2001] 3 Suppl. SCR 619
relied on
Para 6.1
[2006] 10 Suppl. SCR 287
relied on
Para 6.3
[2013] 8 SCR 241
referred to
Para 6.3
[1966] SCR 543
referred to
Para 6.3
[2017] 2 SCR 922
relied on
Para 6.5
[2002] 1 Suppl. SCR 469
referred to
Para 8.1
[2003] 6 Suppl. SCR 1235
relied on
Para 11.2
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6187
of 2019.
From the Judgment and Order dated 05.07.2019 of the National
Company Law Appellate Tribunal, New Delhi in Comp. App. (AT)
(Insolvency) No. 683 of 2019.
Maninder Singh, Sr. Adv., Ranjan Kumar Pandey, Sandeep Bisht,
Advs. for the Appellant.
Abhishek, M/s Mitter & Mitter Co., Pathik Choudhury, Advs. for
the Respondent.
NATIONAL SPOT EXCHANGE LTD. v. MR. ANIL KOHLI, RESOLUTION
PROFESSIONAL FOR DUNAR FOODS LTD.
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The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned order dated
05.07.2019 passed by the National Company Law Appellate Tribunal,
New Delhi (hereinafter referred to as the ‘NCLAT’) in Company Appeal
(AT)(Insolvency) No. 683 of 2019, by which the NCLAT has refused to
condone the delay of 44 days in preferring the appeal against the order
passed by the National Company Law Tribunal (hereinafter referred to
as the ’NCLT’), rejecting the claim of the appellant herein, the appellant
– National Spot Exchange Limited has preferred the present appeal.
2. The facts leading to the present appeal in nutshell are as under:
That the State Bank of India has initiated the insolvency
proceedings before the NCLT under Section 7 of the Insolvency and
Bankruptcy Code, 2016 (hereinafter referred to as the ‘IBC’) against
one Dunar Foods Limited (hereinafter referred to as the ‘Corporate
Debtor’) on the ground that Corporate Debtor had taken credit limits by
hypothecating the commodities kept in the warehouses of the appellant
– National Spot Exchange Limited; that the NCLT admitted the petition
and commenced the corporate insolvency resolution process against the
corporate debtor under the provisions of the IBC.  Interim Resolution
Professional (for short, ‘IRP’) was appointed. IRP invited the claims
from the creditors of the corporate debtor – Dunar Foods Limited on or
before
17.01.2018; that the appellant herein submitted its claim and also
forwarded its claim through courier to IRP as per Form ‘F’ of the IBC.
At this stage it is required to be noted that the appellant herein earlier
filed Money Suit against one PD Agro Processors Pvt. Ltd. (hereinafter
referred to as ‘PD Agro’) and the corporate debtor being Commercial
Suit No. 11 of 2014 before the High Court of Judicature at Bombay.
The High Court vide order dated 11.04.2014 in Notice of Motion 807 of
2014 in CS No. 328 of 2014 injuncted PD Agro and the Corporate Debtor
from disposing of, alienating, encumbering, parting with possession of
and/or otherwise creating third party rights in respect of its movable/
immovable properties/assets; that one FIR No. 216 of 2013 was also
lodged against PD Agro and subsequently the same came to be
transferred to the Economic Offence Wing, Mumbai for further
investigation; that the provisions of Maharashtra Protection of Depositors
Act (MPID) Act, 1999 were also invoked; that it is the case on behalf of
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the appellant that the investigation report submitted by the investigating
agency revealed that PD Agro has siphoned off funds to the tune of
Rs.455 crores during the year 2011-12 and Rs. 289 crores during the
year 2012-13 to the Corporate Debtor; that the High Court of Bombay
passed a decree in Commercial Suit No. 11 of 2014 against PD Agro for
Rs. 633,66,98,350.40 with 9% interest from the date of accrual of the
course of action/default. The aforesaid shall be dealt with hereinafter.
2.1 That in response to the public announcement by the IRP inviting
the claims from the creditors of the Corporate Debtor (Dunar Foods
Limited) dated 6.1.2018, the appellant submitted the claim of Rs. 673.85
crores; that it was the case on behalf of the appellant that a decree has
been passed against PD Agro for an amount of Rs.633,66,98,350.40 and
on investigation by the Directorate of Enforcement, it is found that Rs.
744 crores have been siphoned off by PD Agro to the Corporate Debtor.
IRP rejected the claim of the appellant on 18.06.2018 on the ground that
there is no privity of contract between the appellant and the corporate
debtor and that there is no letter or guarantee issued by the corporate
debtor in favour of the appellant. That the rejection of the claim by IRP
came to be challenged by the appellant before NCLT being Miscellaneous
Application No. 603 of 2018 and the NCLT by order dated 6.3.2019
rejected the said application and upheld the decision of the IRP
not to
include the claim of the appellant as a creditor.
3. Being aggrieved and dissatisfied with the order passed by the
NCLT dated 6.3.2019, the appellant herein preferred an appeal before
the NCLAT.  There was a delay of 44 days in preferring the said appeal.
The appeal before the NCLAT was required to be filed within a maximum
period of 45 days (30 days + 15 days). However, there was a further
delay of 44 days beyond a total period of 45 days. Therefore, considering
sub-section (2) of Section 61 of the IBC which provides for powers to
the Appellate Tribunal to condone the delay of only 15 days which it can
condone over the period of 30 days, if there is a sufficient cause, by the
impugned order, the learned Appellate Tribunal has dismissed the appeal
on the ground that the Appellate Tribunal has no jurisdiction to condone
the delay beyond 15 days and thereby the appeal is barred by limitation.
4. Feeling aggrieved and dissatisfied with the impugned order
passed by the learned NCLAT in dismissing the appeal on the ground of
limitation and refusing to condone the delay which was beyond the period
of 15 days, which the Appellate Tribunal could have condoned, the
NATIONAL SPOT EXCHANGE LTD. v. MR. ANIL KOHLI, RESOLUTION
PROFESSIONAL FOR DUNAR FOODS LTD. [M. R. SHAH, J.]
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appellant – National Spot Exchange Limited has preferred the present
appeal.
5. Shri Maninder Singh, learned Senior Advocate has appeared
on behalf of the appellant and Shri Abhishek, learned Advocate has
appeared on behalf of the IRP.
5.1 Shri Maninder Singh, learned senior counsel appearing on
behalf of the appellant has submitted that though the learned Appellate
Tribunal may be justified in dismissing the appeal on the ground of limitation
by holding that the Appellate Tribunal has no jurisdiction to condone the
delay beyond 15 days, it is prayed to exercise the powers under Article
142 of the Constitution of India, in the peculiar facts and circumstances
of the case.
5.2 It is submitted that on investigation by the Directorate of
Enforcement, it is revealed that PD Agro which was the sister concern
of the Corporate Debtor, has siphoned off Rs. 744 crores to the Corporate
Debtor. It is submitted that there was a common management/Directors
of PD Agro as well as the Corporate Debtor. It is submitted that both
the Corporate Debtor and PD Agro are sister concerns and have the
same management. Dunar Foods Limited is a flagship entity of PD Agro
and is the main beneficiary of the funds received by PD Agro from the
trades executed on the appellant’s platform. It is submitted that one Mr.
Ranjeev Agarwal and Ms. Sheetal Gupta are the directors and
shareholders of PD Agro. Shri Ranjeev Agarwal was also the CFO of
the
Corporate Debtor and Ms. Sheetal Gupta is the wife of Shri Surender
Gupta. It is submitted that Shri Surender Gupta is the promoter and
managing director of the corporate debtor. It is submitted that even Shri
Surender Gupta in his statement given under Section 50 PMLA before
the Enforcement Directorate has confirmed that he was managing the
affairs of PD Agro and that PD Agro is a shareholder of Dunar Foods
Limited, holding 8.25% shares.  It is submitted that therefore management
and directors of PD Agro and the Corporate Debtor – Dunar Foods
Limited played a fraud.
5.3 It is submitted that even the PD Agro admittedly owes and did
not pay INR 693 crores towards their liability despite admitting its liability
vide letter dated 01.08.2013 and had assured to clear its outstanding in
20 weeks in the said letter. It is submitted that during the investigation it
is revealed that the corporate debtor used PD Agro as its front and had
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siphoned off the money. It is further submitted that even there is a decree
passed by the Bombay High Court against PD Agro. It is submitted that
therefore when it is revealed during investigation that the PD Agro
siphoned off Rs. 744 crores to the corporate debtor, the IRP ought to
have admitted the claim of the appellant even by lifting the veil. It is
submitted that the NCLT has also not considered the aforesaid in its true
perspective and has not even lifted the corporate veil which ought to
have been done in the facts and circumstances of the case.
5.4 It is further submitted by Shri Maninder Singh, learned senior
counsel appearing on behalf of the appellant that therefore in the
aforesaid peculiar facts and circumstances of the case, where a huge
amount of Rs. 693 crores is involved, which is due and payable to the
appellant herein, which can be said to be a public body which provided
an electronic exchange platform which commenced its operations after
the Ministry of Consumer Affairs, Government of India granted it an
exemption under Section 27 of the Forward Contracts (Regulation) Act,
1952 to launch one-day forward contracts for buying and selling of
commodities and therefore it is prayed to condone the delay in preferring
the appeal before the NCLAT, in exercise of powers under Article 142
of the Constitution of India.  Heavy reliance is placed on the decisions of
this Court in the cases of Chitra Sharma v. Union of India, reported
in (2018) 18
SCC 575; Jaiprakash Associates Limited v. IDBI Bank
Limited, reported in (2020) 3 SCC 328; and Reliance General
Insurance Co. Ltd. v. Mampee Timbers and Hardwares Pvt. Ltd.,
reported in (2021) 3 SCC 673, in support of his prayer to condone the
delay beyond the time prescribed under the IBC, i.e., the delay of 44
days in preferring the appeal before the NCLAT, in exercise of powers
under Article 142 of the Constitution of India.
6. The present appeal is vehemently opposed by Shri Abhishek,
learned Advocate appearing for the IRP for corporate debtor. It is
submitted that Section 61(2) of the Code provides for power of the
Appellate Tribunal to condone the delay in the appeal. It is submitted
that the Appellate Tribunal can condone the delay of only 15 days over
the period of 30 days, if there is a sufficient cause. It is submitted that
beyond the period of 15 days, over the period of 30 days, the Appellate
Tribunal has no jurisdiction to condone the delay. It is submitted that
therefore the learned Appellate Tribunal has rightly and correctly
dismissed the appeal on the ground that it did not have the power to
NATIONAL SPOT EXCHANGE LTD. v. MR. ANIL KOHLI, RESOLUTION
PROFESSIONAL FOR DUNAR FOODS LTD. [M. R. SHAH, J.]
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condone the delay beyond the period of 15 days, over the period of 30
days, i.e., in the present case the delay of 44 days.
6.1 It is submitted that as held by this Court in the case of Union
of India v. Popular Construction Co., reported in (2001) 8 SCC
470, where the legislature prescribed a special limitation for the purpose
of the appeal and the period of limitation of 60 days was to be computed
after taking the aid of Sections 4, 5 and 12 of the Limitation Act, the
specific inclusion of these sections meant that to that extent only the
provisions of the Limitation Act stood extended and the applicability of
the other provisions, by necessary implication stood excluded.
6.2 It is further submitted by the learned counsel appearing on
behalf of the IRP that once the statute provides the period of limitation
and to condone the delay up to a particular period and the statute
specifically provides that beyond a particular period, the delay cannot be
condoned, the same has to be adhered to. Heavy reliance is placed on
the Constitution Bench decision of this Court in the case of New India
Assurance Company Limited v. Hilli Multipurpose Cold Storage
Private Limited, reported in (2020) 5 SCC 757.
6.3 It is further submitted by the learned counsel appearing for
the IRP that the law made by the Parliament must be given effect to. It
is submitted that as held by this Court in catena of decisions that hardship
is no ground
not to give effect to the mandate of Parliament and that law
overrides equitable considerations. Reliance is placed on the following
decisions of this Court, Rohitash Kumar v. Om Prakash Sharma,
reported in (2013) 11 SCC 451 (paras 23 to 26); CMD/Chairman,
Bharat Sanchar Nigam Limited v. Mishri Lal, reported in (2011) 14
SCC 739 (para 20); Raghunath Rai Bareja v. Punjab National Bank,
reported in (2007) 2 SCC 230 (paras 29 to 37); Popat Bahiru
Goverdhane v. Special Land Acquisition Officer, reported in (2013)
10 SCC 765 (para 16); and The Martin Burn Limited v. The
Corporation of Calcutta, reported in AIR 1966 SC 529 (para 14).
6.4 Making the above submissions and relying upon the aforesaid
decisions and the relevant provisions of the statute, namely, Sub-section
(2) of Section 61 of the Code, it is submitted that as such no error has
been committed by the learned Appellate Tribunal in not condoning the
delay beyond the period of 15 days, over the period of 30 days. It is
submitted that as such the learned Appellate Tribunal has acted just in
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consonance with the provisions of the statute and has followed the
statutory provisions strictly.
6.5 Now so far as the prayer on behalf of the appellant to condone
the delay beyond the period prescribed under the statute, in exercise of
powers under Article 142 of the Constitution of India is concerned, it is
submitted that as observed and held by this Court in the case of Oil &
Natural Gas Corporation Limited v. Gujarat Energy Transmission
Corporation Limited, reported in AIR 2017 SC 1352 where the statute
commands that the court shall not condone the delay beyond a particular
days, in other words, can condone delay only  up to a particular days and
not beyond that, it would come within the ambit and sweep of the
provisions and policy of legislation and therefore it is un-condonable and
it cannot be condoned even taking recourse to Article 142 of the
Constitution of India. It is submitted that what cannot be done directly
under the statute as per the statutory provisions cannot be permitted to
be done indirectly, in exercise of powers under Article 142 of the
Constitution of India.
6.6 It is further submitted that even otherwise and on meris also,
the appellant cannot be said to be a creditor of the corporate debtor –
Dunar Foods Limited. It is submitted that it is pertinent to note that if
Form ‘F’ dated 17.01.2018 filed by the appellant and the supporting
documents are perused, it is evident that the claim filed to the extent of
Rs. 673.85 crores is
a claim against PD Agro. It is submitted that the
appellant has filed its claim against the corporate debtor on the ground
that fraud/scam has been done by PD Agro in connivance with various
entities including the corporate debtor and therefore an amount of
Rs. 673.85 crores alleged to be payable by the PD Agro should be paid
by the corporate debtor. It is submitted that even the decree passed in
Commercial Suit No. 11 of 2014 has been passed only against PD Agro
and not the corporate debtor. It is submitted therefore even otherwise
the appellant is not a creditor of the corporate debtor and therefore IRP
has rightly not entertained the claim of the appellant. It is further submitted
that even thereafter the resolution plan has been approved by the NCLT
– the adjudicating authority and the appellant has already assailed the
approved resolution plan in Company Appeal (AT) (Insolvency) No. 424
of 2020 before the NCLAT.
6.7 Making the above submissions and relying upon the aforesaid
decisions, it is prayed to dismiss the present appeal.
NATIONAL SPOT EXCHANGE LTD. v. MR. ANIL KOHLI, RESOLUTION
PROFESSIONAL FOR DUNAR FOODS LTD. [M. R. SHAH, J.]
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7. We have heard the learned counsel for the respective parties
at length.
At the outset, it is required to be noted that the appellant herein
has challenged the order passed by the adjudicating authority dated
6.3.2019 affirming the decision of the resolution professional of rejection
of the claim of the appellant before the NCLAT. The appeal preferred
before the NCLAT was under Section 61(2) of the IB Code. As per
Section 61(2) of the IB Code, the appeal was required to be preferred
within a period of thirty days. Therefore, the limitation period prescribed
to prefer an appeal was 30 days. However, as per the proviso to Section
61(2) of the Code, the Appellate Tribunal may allow an appeal to be filed
after the expiry of the said period of 30 days if it is satisfied that there
was sufficient cause for not filing the appeal, but such period shall not
exceed 15 days. Therefore, the Appellate Tribunal has no jurisdiction
at all to condone the delay exceeding 15 days from the period of 30
days, as contemplated under Section 61(2) of the IB Code. Section 61(2)
of the IB Code reads as under:
“Section 61(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.”
7.1 In the present case, even the appellant applied for the certified
copy of the order passed by the adjudicating authority on 8.4.2019, i.e.,
after a delay of 34 days. Therefore, even the certified copy of the order
passed by the adjudicating authority was applied beyond the prescribed
period of limitation, i.e., beyond 30 days. The certified copy of the order
was received by the appellant on 11.04.2019 and the appeal before the
NCLAT was preferred on 24.06.2019, i.e., after a delay of 44 days. As
the Appellate Tribunal can condone the delay up to a period of 15 days
only, the Appellate Tribunal refused to condone the delay which was
beyond 15 days from completion of 30 days, i.e., in the present case
delay of 44 days and consequently dismissed the appeal. Therefore, as
such, it cannot be said that the learned Appellate Tribunal committed
any error in not condoning the delay of 44 days, which was beyond the
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delay of 15 days which cannot be condoned as per Section 61(2) of the
IB Code.
8. An identical question came to be considered by this Court in
the case of Popular Construction Co. (supra). While considering
Section 34 of the Arbitration and Conciliation Act, 1996 which provided
that an application for setting aside of the award cannot be made after
three months and it further provided that if the court is satisfied that the
applicant was prevented by sufficient cause from making an application
within the said period of three months, it may entertain the application
within a further period of thirty days, but not thereafter, after considering
Section 29 (2) of the Limitation Act and after observing that “Arbitration
& Conciliation Act, 1996 is a special law” and that Section 34 of the
Arbitration & Conciliation Act, 1996 provides for a period of limitation
different from that prescribed under the Limitation Act, ultimately this
Court held that Section 5 of the Limitation Act shall not be applicable as
the legislature has prescribed a special limitation for the purpose of the
appeal as provided under Section 34 of the Arbitration & Conciliation
Act, 1996.  In paragraphs 11 & 12, it is observed and held as under:
“11. Thus, where the legislature prescribed a special limitation for
the purpose of the appeal and the period of limitation of 60 days
was to be computed after taking the aid of Sections 4, 5 and 12 of
the Limitation Act, the specific inclusion of
these sections meant
that to that extent only the provisions of the Limitation Act stood
extended and the applicability of the other provisions, by necessary
implication stood excluded.
12. As far as the language of Section 34 of the 1996 Act is
concerned, the crucial words are “but not thereafter” used in the
proviso to sub-section (3).  In our opinion, this phrase would amount
to an express exclusion within the meaning of Section 29(2) of
the Limitation Act, and would therefore bar the application of
Section 5 of that Act. Parliament did not need to go further. To
hold that the court could entertain an application to set aside the
award beyond the extended period under the proviso, would render
the phrase “but not thereafter” wholly otiose. No principle of
interpretation would justify such a result.”
8.1 An identical question came to be considered by a Constitution
Bench of this Court in the case of Hilli Multipurpose Cold Storage
NATIONAL SPOT EXCHANGE LTD. v. MR. ANIL KOHLI, RESOLUTION
PROFESSIONAL FOR DUNAR FOODS LTD. [M. R. SHAH, J.]
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Private Limited (supra). The question before the Constitution Bench
was, whether the District Forum has the power to extend the time for
filing of response to the complaint beyond the period of 15 days, in addition
to 30 days, as envisaged under Section 13(2)(a) of the Consumer
Protection Act? After approving the decision of this Court in the case of
J.J. Merchant v. Shrinath Chaturvedi, reported in (2002) 6 SCC
635 and after considering the various decisions of this Court on the
point, the Constitution Bench has ultimately concluded that “the District
Forum has no jurisdiction and/or power to extend the time for filing of
response to the complaint beyond the period of 15 days, in addition to 30
days, as envisaged under Section 13(2)(a) of the Consumer Protection
Act.
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 even
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 the 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.
10. In the case of Rohitash Kumar (supra), this court observed
and held as under:-
“23. There may be a statutory provision, which causes great
hardship or inconvenience to either the party concerned, or to an
individual, but the Court has no choice but to enforce it in full
rigor. It is a well settled principle of interpretation that hardship or
inconvenience caused, cannot be used as a basis to alter the
meaning of the language employed by the legislature, if such
meaning is clear upon a bare perusal of the Statute. If the language
is plain and hence allows only one meaning, the same has to be
given effect to, even if it causes hardship or possible injustice.
(Vide: Commissioner of Agricultural Income Tax, West Bengal v.
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Keshab Chandra Mandal, AIR 1950 SC 265; and D. D. Joshi &
Ors. v. Union of India & Ors., (1983) 2 SCC 235).
24. In Bengal Immunity Co. Ltd. v. State of Bihar & Ors., AIR
1955 SC 661 it was observed by a Constitution Bench of this
Court that, if there is any hardship, it is for the legislature to amend
the law, and that the Court cannot be called upon, to discard the
cardinal rule of interpretation for the purpose of mitigating such
hardship. If the language of an Act is sufficiently clear, the Court
has to give effect to it, however, inequitable or unjust the result
may be. The words, ‘dura lex sed lex’ which mean “the law is
hard but it is the law.” may be used to sum up the situation.
Therefore, even if a statutory provision causes hardship to some
people, it is not for the Court to amend the law. A legal enactment
must be interpreted in its plain and literal sense, as that is the first
principle of interpretation.
25. In Mysore State Electricity Board v. Bangalore Woolen, Cotton
& Silk Mills Ltd. & Ors., AIR 1963 SC 1128, a Constitution Bench
of this Court held that, “inconvenience is not” a decisive factor to
be considered while interpreting a statute. In Martin Burn Ltd. v.
The Corporation of Calcutta, AIR 1966 SC 529, this Court, while
dealing with the same issue observed as under:–
“A result flowing from a statutory provision is never an evil. A
Court has no power to ignore that provision to relieve what it
considers a distress resulting from its
operation. A statute must
of course be given effect to whether a Court likes the result or
not.” (See also: The Commissioner of Income Tax, West Bengal
I, Calcutta v. M/s Vegetables Products Ltd., (1973) 1 SCC
442; and Tata Power Company Ltd. v. Reliance Energy Limited
& Ors., (2009) 16 SCC 659).
26. Therefore, it is evident that the hardship caused to an individual,
cannot be a ground for not giving effective and grammatical
meaning to every word of the provision, if the language used
therein, is unequivocal.”
10.1 In the case of Mishri Lal & Others (supra), it is observed
that the law prevails over equity if there is a conflict. It is observed
further that equity can only supplement the law and not supplant it.
NATIONAL SPOT EXCHANGE LTD. v. MR. ANIL KOHLI, RESOLUTION
PROFESSIONAL FOR DUNAR FOODS LTD. [M. R. SHAH, J.]
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10.2 In the case of Raghunath Rai Bareja (supra), in paras 30
to 37, this Court observed and held as under :-
30. Thus, in Madamanchi Ramappa & Anr. vs. Muthaluru Bojjappa,
AIR 1963 SC 1633 (vide para 12) this Court observed:
“[W] what is administered in Courts is justice according to
law, and considerations of fair play and equity however
important they may be, must yield to clear and express
provisions of the law”
31. In Council for Indian School Certificate Examination vs. Isha
Mittal & Anr., 2000 (7) SCC 521 (vide para 4) this Court observed:
“Considerations of equity cannot prevail and do not permit a
High Court to pass an order contrary to the law.”
32. Similarly in P.M. Latha & Anr. vs. State of Kerala & Ors.
2003(3) SCC 541 (vide para 13) this Court observed:
“13. Equity and law are twin brothers and law should be applied
and interpreted equitably, but equity cannot override written or
settled law.” (Emphasis supplied)
33. In Laxminarayan R. Bhattad & Ors. vs. State of Maharashtra
& Anr. 2003(5) SCC 413 (vide para 73) this Court observed:
“73. It is now well settled that when there is a conflict between
law and equity the former shall prevail.”
34. Similarly in Nasiruddin & Ors. vs. Sita Ram Agarwal, 2003(2)
SCC 577 (vide para 35) this Court observed:
“35. In a case where the statutory provision is plain and
unambiguous, the court shall not interpret the same in a different
manner, only because of harsh
consequences arising
therefrom.”
35. Similarly in E. Palanisamy vs. Palanisamy (Dead) by Lrs. &
Ors., 2003(1) SCC 123 (vide para 5) this Court observed:
“Equitable considerations have no place where the statute
contained express provisions”.
36. In India House vs. Kishan N. Lalwani, 2003(9) SCC 393 (vide
para 7) this Court held that:
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“The period of limitation statutorily prescribed has to be strictly
adhered to and cannot be relaxed or departed from by equitable
considerations.” (Emphasis supplied)
37. In the present case, while equity is in favour of the respondent-
Bank, the law is in favour of the appellant, since we are of the
opinion that the impugned order of the High Court is clearly in
violation of Section 31 of the RDB Act, and moreover the claim is
time-barred in view of Article 136 of the Limitation Act read with
Section 24 of the RDB Act. We cannot but comment that it is the
Bank itself which is to blame because after its first Execution
Petition was dismissed on 23.8.1990 it should have immediately
thereafter filed a second Execution Petition, but instead it filed
the second Execution Petition only in 1994 which was dismissed
on 18.8.1994. Thereafter, again, the Bank waited for 5 years and
it was only on 1.4.1999 that it filed its third Execution Petition. We
fail to understand why the Bank waited from 1990 to 1994 and
again from 1994 to 1999 in filing its Execution Petitions. Hence, it
is the Bank which is responsible for not getting the decree executed
well in time.”
In the case before this Court, the claim made by the Bank was
found to be time barred and to that this Court observed that while
the equity is in favour of the Bank, the law is not in favour of the
borrower, however, since the claim is time barred, as the execution
petition was barred by the limitation,
this court set-aside as such
the execution petition.
10.3 In the case of Popat Bahiru Govardhane & Others
(supra), this Court has observed and held that it is a settled legal position
that the law of limitation may harshly affect a particular party but it has
to be applied with all its rigour when the Statute so prescribes. The
Court has no power to extend the period of limitation on equitable grounds.
It is further observed that the statutory provision may cause hardship or
inconvenience to a particular party but the Court has no choice but to
enforce it by giving full effect to the same.
11. It is also required to be noted that even Shri Maninder Singh,
learned senior counsel appearing on behalf of the appellant has, as such,
fairly conceded that considering Section 61(2) of the IBCode, the
Appellate Tribunal has jurisdiction or power to condone the delay not
NATIONAL SPOT EXCHANGE LTD. v. MR. ANIL KOHLI, RESOLUTION
PROFESSIONAL FOR DUNAR FOODS LTD. [M. R. SHAH, J.]
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exceeding 15 days from the completion of 30 days, the statutory period
of limitation. However, has requested and prayed to condone the delay
in exercise of powers under Article 142 of the Constitution of India, in
the facts and circumstances of the case and submitted that the amount
involved is a very huge amount and that the appellant is a public body.
We are afraid what cannot be done directly considering the statutory
provisions cannot be permitted to be done indirectly, while exercising the
powers under Article 142 of the Constitution of India.
11.1 At this stage, decision of this Court in the case of Oil &
Natural Gas Corporation Limited (supra) is required to be referred
to.  Before this Court, the question was with respect to delay beyond
120 days in preferring the appeal under Section 125 of the Electricity
Act and the question arose whether the delay beyond 120 days in
preferring the appeal is condonable or not. After considering various
earlier decisions of this Court on the point and considering the language
used in Section 125 [2] of the Electricity Act which provided that delay
beyond 120 days is not condonable, this Court has observed and held
that it is not condonable and it cannot be condoned, even taking recourse
to Article 142 of the Constitution. While observing and holding so in
para-16, this Court has observed and held as under:-
“16. From the aforesaid decisions, it is clear as crystal that the
Constitution Bench inSupreme Court Bar Association [AIR 1988
SC 1895] [Supra] has ruled that there is no conflict of opinion in
Antulay’s case [AIR 1988 SC 1531] or in Union Carbide
Corporation’s case with the principle set-down in Prem Chand
Garg & Anr. v. Excise Commissioner, AIR 1963 SC 996. Be it
noted, when there is a statutory command by the legislation as
regards limitation and there is the postulate that delay can be
condoned for a further period not exceeding sixty days, needless
to say, it is based on certain underlined, fundamental, general issues
of public policy as has been held in Union Carbide Corporation’s
case. As the pronouncement om Chhattisgarh State Electricity
Board [AIR 2010 SC 2061] (Supra) lays down quite clearly that
the policy behind the Act emphasizing on the constitution of a
special adjudicatory forum, is meant to expeditiously decide the
grievances of a person who may be aggrieved by an order of the
adjudicatory officer or by an appropriate Commission. The Act is
a special legislation within the meaning of Section 29 (2) of the
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Limitation Act and, therefore, the prescription with regard to the
limitation has to be the binding effect and the same has to be
followed regard being had to its mandatory nature. To put it in a
different way, the prescription of limitation in a case of present
nature, when the statute commands that this Court may condone
the further delay not beyond 60 days, it would come within the
ambit and sweep of the provisions and policy of legislation. It is
equivalent to Section 3 of the Limitation Act. Therefore, it is
uncondonable and it cannot be condoned taking recourse to Article
142 of the Constitution.”
11.2 In the case of Teri Oat Estates (P) Ltd. v. U.T. Chandigarh,
reported in (2004) 2 SCC 130, in paragraphs 36 & 37, it is observed as
under:
“36. We have no doubt in our mind that sympathy or sentiment by
itself cannot be a ground for passing an order in relation whereto
the appellants miserably fail to establish a legal right. It is further
trite that despite an extraordinary constitutional jurisdiction
contained in Article 142 of the Constitution of India, this Court
ordinarily would not pass an order which would be contravention
of a statutory provision.
37. As early as in 1911, Farwell, L.J. In Latham v. Richard
Johnson & Nephew Ltd. (1911-12) All ER Rep 117 observed:
(All ER p. 123E)
“We must be very careful not to allow our sympathy with
the infant plaintiff to affect our judgment. Sentiment is a
dangerous will o’ the wisp to take as a guide in
the search
for legal principles”
Thus, 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.
12. In view of the afore-stated settled proposition of law and even
considering the fact that even the certified copy of the order passed by
the adjudicating authority was applied beyond the period of 30 days and
as observed hereinabove there was a delay of 44 days in preferring the
appeal which was beyond the period of 15 days which maximum could
have been condoned and in view of specific statutory provision contained
NATIONAL SPOT EXCHANGE LTD. v. MR. ANIL KOHLI, RESOLUTION
PROFESSIONAL FOR DUNAR FOODS LTD. [M. R. SHAH, J.]

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in Section 61(2) of the IB Code, it cannot be said that the NCLAT has
committed any error in dismissing the appeal on the ground of limitation
by observing that it has no jurisdiction and/or power to condone the
delay exceeding 15 days.
13. In view of the above and for the reasons stated above, no
interference of this Court is called for. The present appeal fails and
deserves to be dismissed and is accordingly dismissed. However, in the
facts and circumstances of the case, there shall be no order as to costs.
Ankit Gyan
Appeal dismissed.