Status as on- 04/05/2021
An appeal is a procedure or a lawsuit filed with a higher court against an order of a lower court for any wrong or mistake committed by the lower court in its decision or judgement, and the higher court is asked to amend or revoke it. Every statute incorporates the concept of appeal in its scope in order to keep a check on and avoid unreasonable and incorrect decisions. Here we will see how one can appeal against an order of the Hon’ble National Company Law Tribunal (“NCLT”).
National Company Law Appellate Tribunal (NCLAT)
NCLAT was constituted under Section 410 of Companies Act, 2013 and exercises appellate jurisdiction against orders of NCLT. The procedure for appealing the Adjudicating Authority’s (NCLT) order to the NCLAT is set out in Section 61 of the Insolvency and Bankruptcy Code (“IBC”). The appeal may be brought by “any person aggrieved” by the NCLT’s decision. To prevent any mistakes. It is important that the appeal follows the formatting guidelines outlined in the checklist.
Section 61(1) of the Code provides that “Notwithstanding…. any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal.”
Time Period for filing an appeal
The time limit for filing an appeal against an NCLT decision, is thirty days from the date of the NCLT order, according to Section 61(2) of the IBC. The NCLAT is empowered by a proviso to Section 61(2) of the IBC, to enable an appeal filed after the aforementioned thirty-day duration has expired, if it is satisfied that there is a fair “sufficient cause” for the delay, provided such relief is granted. The term “sufficient cause” is not defined under the Code. In the general parlance, the expression “sufficient cause” employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice.
Limitation Act applicable or not?
The provisions of the Limitation Act, 1963 shall, to the extent possible, apply to proceedings and appeals before the NCLAT, according to Section 238A of the Code. However, it should be noted that Section 5 of the Limitation Act, which allows for the condonation of delays in appeals and civil cases where the statute of limitations has run out, does not extend to appeals under the Code. Section 5 of the Limitation Act, does not provide for an extension of time to file an appeal or a lawsuit, instead requiring only that the court be satisfied that there is “sufficient cause.”
Section 61 read with Section 238 of the Code makes it clear that the delay cannot be condoned beyond fifteen days, and therefore the Code prevails over the Limitation Act in matters of condonation of delay.
Appeal to the Supreme Court
Section 62 of the Insolvency and Bankruptcy Code talks about Appeals to the Hon’ble Supreme Court. Any person aggrieved by an order of the National Company Law Appellate Tribunal may file an appeal to the Supreme Court on a question of law arising out of such order under this Code within forty-five days from the date of receipt of such order. (2) The Supreme Court may, if it is satisfied that a person was prevented by sufficient cause from filing an appeal within forty-five days, allow the appeal to be filed within a further period not exceeding fifteen days.
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