Curing Of Defects Arising Out Of Defectively Filed Appeal U/S.62 Of IBC Is Permissible Only Within 28 Days Of Notification Thereof: Supreme Court
The Supreme Court was considering an appeal filed under Section 62 of the Insolvency and Bankruptcy Code, 2016.
Justice Dipankar Datta, Justice Satish Chandra Sharma, Supreme Court
While dismissing a defective appeal and terming the same as time-barred, the Supreme Court has held that curing of defects arising out of a defectively filed appeal under Section 62 of the Insolvency & Bankruptcy Code (IBC) is permissible within 28 days of notification. The Bench further clarified that, since there is no scope for curing defects after the lapse of 28 days, filing an application for re-filing delay does not arise.
The Apex Court was considering an appeal filed under Section 62 of the Insolvency and Bankruptcy Code, 2016, at the instance of the liquidator of a corporate debtor under liquidation, challenging the judgment of the National Company Law Appellate Tribunal.
The Division Bench of Justice Dipankar Datta and Justice Satish Chandra Sharma held, “To sum up our discussion, 45 (forty-five) days is available under subsection (1) of Section 62, IBC from date of receipt of the order of the NCLT to file an appeal involving a substantial question of law before this Court. As per sub-section (2), subject to sufficient cause being shown, the Supreme Court may allow an appeal to be filed within 15 (fifteen) days after the expiry of the said 45 (forty-five) days but not beyond. Curing of defects arising out of a defectively filed appeal under Section 62, IBC is permissible within 28 (twenty-eight) days of notification thereof by the Registry. If the defects are cured within 28 (twenty-eight) days, the appeal would deserve registration upon removal of the “D No.”. However, there being no scope for curing defects after lapse of the period of 28 (twenty-eight) days in respect of an appeal under Section 62, IBC, filing of an application for re-filing delay does not arise. Consequently, no question of condonation of delay [even for a day beyond 60 (sixty) days (in case of an appeal which, apart from the little delay in filing beyond 45 (forty-five days), is otherwise defect-free) and 28 (twenty-eight) days (in case of a defective appeal)] arises for consideration.
Senior Advocate Sunil Fernandes represented the Appellant, while Senior Advocate Balbir Singh represented the Respondent.
Factual Background
The appeal was presented on January 29, 2026, beyond the period of limitation prescribed in Section 62(1), IBC, but within the grace period stipulated in sub-section (2). The office reported a delay of 7 days in filing the appeal. An application seeking condonation of the said delay was filed. The office had also marked the appeal defective. Upon curing the defects, the appeal came to be re-filed after a further delay of 82 days, for which a separate application seeking condonation of the delay in re-filing had also been filed.
Reasoning
The Bench, at the outset, explained that the scheme of limitation under the IBC is a strict and time-bound one. “The concept of condonation of delay itself is alien to the statutory framework beyond the period expressly contemplated under the statute. Section 62 of the IBC permits an appeal to be filed before this Court within 45 (forty-five) days, with a further grace period of only 15 (fifteen) days, and that too, only upon sufficient cause being shown. Thus, the outer limit statutorily permissible is 60 (sixty) days, beyond which the appeal itself becomes barred and the Court’s jurisdiction to condone the delay ceases”, it explained.
The Bench next dealt with the position under the Supreme Court Rules, 2013. Sub-rules (3) and (4), of Rule 6 of Order VIII, SCR, lay down the regime governing the re-filing of petitions and appeals after curing defects. The Bench noted that a period of 28 (twenty-eight) days is earmarked for curing of defects. “A litigant not curing the defects within 28 (twenty-eight) days may re-file the petition or the appeal, as the case may be, together with an application seeking condonation of re-filing delay. Needless to observe, condonation of re-filing delay for petitions and appeals is discretionary”, it stated.
The Bench was of the view that the appellant could derive no advantage from the earlier order condoning the delay in re-filing the appeal under Section 61, IBC, before the NCLAT. As per the Bench, that exercise of discretion was confined to the peculiar facts of that case and could not be construed as a warrant for repeated indulgence. “The discipline of limitation, particularly in the context of the IBC, does not countenance serial condonations of delay across successive appellate stages. Having once availed the benefit of a liberal approach, the appellant cannot legitimately seek a further relaxation when the present appeal under Section 62 is itself beset by delay both in filing and in re-filing”, the Bench asserted.
Dealing with the facts of the case, the Bench concluded that sufficient cause was not shown to satisfactorily explain the delay. The Bench held that the delay in both the filing of the defective appeal and re-filing of the appeal was not liable to be condoned as there was no cogent or convincing justification. The Bench thus dismissed the defective appeal as time-barred, having been filed beyond the maximum period condonable in terms of the IBC.
Cause Title: CA Ramchandra Dallaram Choudhary v. Adani Infrastructure and Developers Private Limited (Neutral Citation: 2026 INSC 629)
Appearance
Appellant: Senior Advocates Sunil Fernandes, Abhijeet Sinha, Atul Sharma, Pankaj Jain, Aditi Sharma, Vikram Choudhary, AOR Shubham Bhalla
Respondent: Senior Advocate Balbir Singh, AOR Hetu Arora Sethi, Advocates Anirudh Bhat, Siddarth Agarwal, Shamik Bhatt, Sanidhya Kumar, Vedant Kohli