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2024 (3) TMI 1141 - AT - Insolvency and BankruptcyCondonation of delay in filing appeal - Appellant submitted that Impugned Order was not available prior to 12.12.2023 and Impugned Order was made available on website of NCLT on 12.12.2023 - HELD THAT - The Order Impugned Itself indicates that counsel on behalf of the Appellant who is referred as intervening in application was present and order was passed in presence of counsel for the Appellant. The order having pronounced in the presence of the counsel for the Appellant, he cannot be heard in claiming that Appellant was not aware of the order and he came to know only when order was uploaded in website of the NCLT. Whether the Appellant has filed any application for obtaining certified copy? - HELD THAT - There is no material on record or affidavit or additional affidavit to indicate that any Application has been filed. Rule 2(14) defines filed means filed in the office of the registry of the Tribunal. There is not even pleading that any application was filed for certified copy of the Order. Whether Appellant was entitled to file an application for obtaining certified copy of the order passed on 10.11.2023? - HELD THAT - A party means a person who prefers an appeal or application or petition. The present is a case where Section 7 Application was filed by the Appellant- State Bank of India on which CP(IB) No. 3025/2019 was registered. When Appellant is a party to the main company petition, it does not appear to be reason that he cannot make an application for certified copy of the order in I.A. passed in the same company petition which was filed by the Appellant. All I.As filed in the same company petition by different parties are I.As in the Company Petition and when main Company Petition has been filed by the Appellant, it cannot be said that Appellant was not entitled to apply for certified copy of the Order passed in Company Petition or in I.A.s including I.A. No. 127 of 2022. Hon ble Supreme Court in V. Nagarajan Vs. SKS Ispat and Power Limited Ors, 2021 (10) TMI 941 - SUPREME COURT makes it clear that the limitation commences when order is pronounced and only the time taken by the Court to provide certified copy shall be excluded. The commencement of limitation thus is not suspended till the order is uploaded in the website of the NCLT. Hon ble Supreme Court in the said Judgment noted the conscious omission order is made available to the aggrieved party which was occurring in Section 421(3) in Section 61 of IBC . The order was pronounced on 10th November, 2023 in the presence of counsel for the Appellant, period for limitation shall commence from the next date i.e. 11.11.2023 and the Appeal having been filed with delay of 18 days on 29th December, 2023 was beyond condonable period. Our jurisdiction to condone the delay is limited to 15 days only hence delay of 18 days cannot be condoned. Delay Condonation Application is dismissed.
Issues Involved:
1. Condonation of delay in filing the appeal. 2. Awareness and pronouncement of the impugned order. 3. Application for certified copy of the order and its relevance to limitation period. 4. Applicability of Section 12 of the Limitation Act. Summary: 1. Condonation of Delay in Filing the Appeal: The appellant filed I.A. No. 478 of 2024 seeking condonation of an 18-day delay in filing the appeal against the order dated 10th November 2023. The appellant argued that the impugned order was not available until 12th December 2023 and was uploaded on the NCLT website between 9th and 12th December 2023. The appellant further stated that internal discussions and obtaining legal opinions caused the delay, which was not intentional or mala fide. The appellant also noted the tribunal was closed for Christmas holidays, extending the limitation period until 2nd February 2024. 2. Awareness and Pronouncement of the Impugned Order: The respondent, Bank of Baroda, contended that the order was pronounced in open court on 10th November 2023 in the presence of the appellant's counsel, who raised objections noted in the order. The tribunal found that the order was indeed pronounced in the presence of the appellant's counsel, and thus, the appellant was aware of the order from the date of pronouncement. 3. Application for Certified Copy of the Order and Its Relevance to Limitation Period: The appellant claimed they attempted to obtain a certified copy of the order but were informed by the registry that they could not apply as they were not a formal party to the I.A. The tribunal examined the NCLT rules and found that the appellant, being a party to the main company petition, was entitled to apply for a certified copy of the order. However, there was no evidence or pleading that the appellant had filed any such application. 4. Applicability of Section 12 of the Limitation Act: The tribunal referred to the Supreme Court's judgment in V. Nagarajan Vs. SKS Ispat and Power Limited, which clarified that the limitation period commences from the date of pronouncement of the order, and only the time taken to obtain a certified copy can be excluded. Since the order was pronounced on 10th November 2023, the limitation period started on 11th November 2023. The appeal filed on 29th December 2023 was beyond the condonable period of 15 days as per statute, and thus, the delay could not be condoned. Conclusion: The application for condonation of delay was dismissed, and consequently, the memo of appeal was rejected.
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