National Spot Exchange Limited vs Anil Kohli Resolution … on 14 September, 2021


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Supreme Court of India

National Spot Exchange Limited vs Anil Kohli Resolution … on 14 September, 2021

Author: M.R. Shah

Bench: M.R. Shah, A.S. Bopanna

                                                               REPORTABLE
                                    IN THE SUPREME COURT OF INDIA
                                    CIVIL APPELLATE JURISDICTION
                                    CIVIL APPEAL NO. 6187 OF 2019


         National Spot Exchange Limited                              …Appellant


                                         Versus


         Mr. Anil Kohli, Resolution Professional for
         Dunar Foods Limited                                         …Respondent




                                               JUDGMENT

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
Signature Not Verified

as the ’NCLT’), rejecting the claim of the appellant herein, the appellant –
Digitally signed by R
Natarajan
Date: 2021.09.14
16:59:42 IST
Reason:

National Spot Exchange Limited has preferred the present appeal.

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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

2
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 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

3
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,

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the 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

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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

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

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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.

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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

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

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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

9
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

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

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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.

7. We have heard the learned counsel for the respective parties at

length.

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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

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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.

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

13
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 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

14
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

15
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. 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.

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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:

“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

17
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 IB Code, the

Appellate Tribunal has jurisdiction or power to condone the delay not

18
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 in Supreme Court Bar Association [AIR 1988 SC

19
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 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”

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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 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.

………………………………..J.

                                         [M.R. Shah]

New Delhi;                               ………………………………..J.
September 14, 2021.                      [Aniruddha Bose]

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