9911796707
TMI Blog2023 (12) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates that when NCLAT registry publishes its cause list, a distinction is drawn between cases listed for pronouncement of orders and other cases. In the present case, the cause list for 17 May 2023 placed on record by the appellant indicates that the case was listed for admission and not for pronouncement. Further, on a specific query of the Court, it is not in dispute between counsel for the appellant and the respondent, that no substantive order was passed on 17 May 2023 by the NCLT. In these circumstances, limitation would not begin to run on 17 May 2023 which was the date on which hearings concluded. As no order was passed before 30 May 2023, there was no occasion for the appellant to lodge an application for a certified copy on 17 May 2023. Time for filing an appeal would commence only when the order appealed from was uploaded since prior to that date no order was pronounced. The period of limitation began to run on 30 May 2023. The 30- day limitation period provided in Section 61(2) of the IBC concluded on 29 June 2023. Though the appeal was filed beyond the period of thirty days, it was within the condonable period of fifteen days - the appeal should be restored to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of the NCLT was not pronounced and no substantive order was passed. The order was uploaded by the Registry of the NCLT on 30 May 2023 though the order carries the date of 17 May 2023. By the order, the NCLT dismissed the appellant s application on the grounds that the application was filed without authorization from the Board of Directors of the Corporate Debtor and was prima facie frivolous, to delay the proceedings in the Section 7 application. The appellant applied for a certified copy on 30 May 2023, which was received on 1 June 2023. The appeal against the order was e-filed before the NCLAT on 10 July 2023. 6. The appellant filed an application for condonation of delay along with the appeal. The appellant contended that (i) the appellant became aware of the contents of the order only on 30 May 2023 and the limitation period should run from this date; (ii) the NCLAT was closed for summer vacations between 05 June 2023 and 02 July 2023 and this period should be excluded from the calculation of limitation. 7. In the background of the above events, the issue before the NCLAT was whether the appeal was instituted within limitation. In its impugned order, the NCLAT concluded that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days. Section 61(2) provides for a limitation period of thirty days. The proviso to the section provides that the NCLAT may allow the appeal to be filed after the expiry of the thirty-day period if it is satisfied that there was sufficient cause for not filing the appeal, but such period shall not exceed fifteen days. Therefore, 45 days is the outer limit within which an appeal from an order of the NCLT may be filed before the NCLAT. 11. The table of dates in paragraph 9 above indicates that there are two possible scenarios. If this Court holds that limitation commences from 30 May 2023, the date of e-filing of the appeal will fall within the condonable period of 15 days. Alternatively, if limitation is held to commence from 17 May 2023, the date of e-filing of the appeal exceeds the outer limit of 45 days and cannot be condoned. 12. In its impugned order, the NCLT has relied on the decision in V Nagarajan (supra) to dismiss the appeal on the ground of limitation. The appellant has sought to distinguish the present case from V Nagarajan (supra) on both facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act allows for an exclusion of the time requisite for obtaining a copy of the decree or order appealed against. It is not open to a person aggrieved by an order under IBC to await the receipt of a free certified copy under Section 420(3) of the Companies Act, 2013 read with Rule 50 of the NCLT Rules and prevent limitation from running. Accepting such a construction will upset the timely framework of IBC. The litigant has to file its appeal within thirty days, which can be extended up to a period of fifteen days, and no more, upon showing sufficient cause. A sleight of interpretation of procedural rules cannot be used to defeat the substantive objective of a legislation that has an impact on the economic health of a nation. 35. The appellant was present before NCLT on 31-12-2019 when interim relief was denied and the miscellaneous application was dismissed. The appellant has demonstrated no effort on his part to secure a certified copy of the said order and has relied on the date of the uploading of the order (12-3-2020) on the website. The period of limitation for filing an appeal under Section 61(1) against the order of NCLT dated 31-12- 2019, expired on 30-1-2020 in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order deemed to be pronounced. The National Company Law Tribunal Rules, 2016 [ NCLT Rules ] provide guidance in this regard. Rule 89(1) of the NCLT Rules indicates that when NCLAT registry publishes its cause list, a distinction is drawn between cases listed for pronouncement of orders and other cases. It states as follows: 89. Preparation and publication of daily cause list. (1) The Registry shall prepare and publish on the notice board of the Registry before the closing of working hours on each working day the cause list for the next working day and subject to the directions of the President, listing of cases in the daily cause list shall be in the following order of priority, unless otherwise ordered by the concerned Bench; namely;- (a) cases for pronouncement of orders; (b) cases for clarification; (c) cases for admission; (d) cases for orders or directions; (e) part-heard cases, latest part-heard having precedence; and (f) cases posted as per numerical order or as directed by the Bench; (emphasis supplied) 17. Further, Part XIX of the NCLAT Rules governs the disposal of cases and pronouncement of orders . The following rules are relevant: 146. Disposal of Cases.- On receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute between counsel for the appellant and the respondent, that no substantive order was passed on 17 May 2023 by the NCLT. In these circumstances, limitation would not begin to run on 17 May 2023 which was the date on which hearings concluded. As no order was passed before 30 May 2023, there was no occasion for the appellant to lodge an application for a certified copy on 17 May 2023. Time for filing an appeal would commence only when the order appealed from was uploaded since prior to that date no order was pronounced. 20. In V Nagarajan (supra), there was an unequivocal pronouncement of the order before the upload of the order and thus, the decision is not applicable to the facts of the case. In the facts of the present case, the date of upload of the order is the same as the date of pronouncement. To avoid situations such as these, in cases where the matter has been heard on a particular day but the order is pronounced on a later date, the NCLT must refrain from affixing the date of hearing on the order. Such an approach would be a violation of the NCLT Rules, which create a distinction between hearing and pronouncement and do not allow the NCLT to dispense with the requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
