2024 (8) TMI 211 - AT - Insolvency and Bankruptcy

Dismissal of the appeal due to delay of 86 days in re-filing - time limitation - HELD THAT - The NCLAT Rules 2016 itself contemplates communication of defects and the removal of the defects in the Appeal. Rule 26, sub-rule (4) further empowers the Registrar in appropriate case, to decline to register the Appeal or filing of any documents. Thus, power is vested with the Registrar to decline to register Appeal when defects are not cured. The procedure for clearing the defects, empowers the Registrar to grant further time for clearing the defects, itself contemplate that defective Appeal filed by the Appellant is permitted to be cured and in event the defects are not cured, the Appeal can be refused to be registered. But when defects are cured and the Appeal is registered, the date of refiling of the Appeal after curing the defects, cannot be treated to be the fresh date of filing of the Appeal for computation of limitation. In the present case, the Appeal having been e-filed on 25.09.2023, i.e. within 30 days from passing of the impugned order dated 28.08.2023, the Appeal cannot be held to be barred by time and the submission advanced by Shri Sanjeev Sen, the Appeal when it was refiled after curing the defects, i.e., 16.01.2024, may be treated as date of filing, cannot be accepted. The date of refiling and date of filing are two different concepts, which are clear from statutory scheme. Thus, non-compliance of Rule 22, sub-rule (2) has not been provided, nor any consequence has been provided in the Rules in the event Appeal is filed without accompanied by a certified copy of the order. When the power has been given to Court to extend the time or waive compliance of any rule, we have no doubt that the Appeal can be filed without applying a certified copy of the orders, in the facts and situation of a particular case - When an Applicant does not apply for a certified copy of the order within the limitation prescribed, he is not entitled to seek any exclusion under Section 12 of the Limitation Act and it is the Applicant, who has to comply the limitation prescribed for filing an Appeal, but the mere fact that he has not applied for certified copy of the order, cannot be a ground for rejecting the Appeal. The Appeal e-filed by the Appellant was within the period of limitation and the Appellant has given sufficient cause for condoning the delay of 86 days in refiling of the Appeal - the order dated 25.01.2024 passed by this Tribunal, condoning the delay of 86 days in refiling of the Appeal, does not warrant any interference. Appeal dismissed.

Summary

Issues Involved:
1. Recall of orders dated 25.01.2024 and 06.02.2024.
2. Dismissal of the appeal due to delay in re-filing.
3. Validity of the appeal filed without a certified copy of the impugned order.

Detailed Analysis:

1. Recall of Orders Dated 25.01.2024 and 06.02.2024:
The Respondent filed Interlocutory Applications (IAs) seeking to recall the orders dated 25.01.2024 and 06.02.2024. The order dated 25.01.2024 condoned an 86-day delay in re-filing the appeal, citing reasons such as misplaced documents and delays in verification and postal receipt of relevant documents. The order dated 06.02.2024 involved the issuance of notices and the submission of replies and rejoinders. The Tribunal examined whether the initial filing of the appeal on 25.09.2023 was valid and within the limitation period.

2. Dismissal of the Appeal Due to Delay in Re-filing:
The Respondent argued that the appeal, initially e-filed on 25.09.2023, was defective and should not be considered valid until it was refiled on 16.01.2024. They contended that the appeal was filed without essential documents like the impugned order, notarized affidavit, and Vakalatnama, making the initial filing non est. The Tribunal referred to Rule 22 and Rule 26 of the NCLAT Rules, 2016, and the Supreme Court's judgment in Sanket Kumar Agarwal v. APG Logistics Pvt. Ltd., which clarified that the limitation period should be computed from the date of e-filing. The Tribunal also noted that the requirement of physical filing had been dispensed with by an order dated 24.12.2022. Therefore, the appeal was deemed to have been filed within the limitation period, and the delay in re-filing was condoned.

3. Validity of the Appeal Filed Without a Certified Copy of the Impugned Order:
The Respondent contended that the appeal should be dismissed as it was not accompanied by a certified copy of the impugned order, as required by Rule 22(2) of the NCLAT Rules, 2016. The Tribunal examined the Supreme Court's judgment in V. Nagarajan v. SKS Ispat and Power Ltd., which emphasized the importance of applying for a certified copy within the limitation period. However, the Tribunal noted that Rule 14 and Rule 15 of the NCLAT Rules allow for exemptions and extensions of time for compliance with procedural requirements. The Tribunal concluded that while applying for a certified copy is necessary for seeking exclusion under Section 12 of the Limitation Act, the mere absence of a certified copy at the time of filing does not automatically invalidate the appeal. The appeal was thus allowed to proceed.

Conclusion:
The Tribunal dismissed the IAs seeking to recall the orders dated 25.01.2024 and 06.02.2024, upheld the condonation of the delay in re-filing the appeal, and allowed the appeal to proceed despite the absence of a certified copy of the impugned order at the time of filing. The appeal was scheduled for hearing on 22nd August 2024.