2024 (7) TMI 693 - AT - Insolvency and Bankruptcy

Interpretation of statute - whether the Certified Copy , so prescribed for the purposes of preference of an Appeal, could be taken up as a substitute to the Certified Free Copy , provided under Rule 50 of the Rules to the parties concerned? - HELD THAT - The issue came up for consideration, before this Tribunal in MUNAGALA ROJA HARSHA VARDHINI VERSUS VARDHANSMART PRIVATE LIMITED 2024 (3) TMI 1333 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL CHENNAI and this question was quite elaborately dealt with by this Tribunal by the Bench of Three Members, wherein, Para 12 onwards the Court has dealt with as to what would be the factors to determine the Certified Copy, in pith and substance mean for the purposes of preferring of an Appeal, under Section 61 of the I B Code, 2016. The issue was laid to rest, by the Three Member Bench while drawing its implication from the Judgment of V. Nagarajan V. SKS Ispat 2021 (10) TMI 941 - SUPREME COURT (LB) where the Three Member Bench of this Tribunal, had answered the aforesaid question after dealing with the various Authorities that, in those cases where the Appellant before the NCLAT, has not applied for a Certified Copy, as prescribed under Section 76 of the Evidence Act, to be read with Rule 2 (9) of the NCLT Rules, after raising a demand and payment of the Requisite Fee, the Free Copy of the Impugned Order will not be treated as to be as good as a Certified Copy, contemplated under Rule 22 (2) to make the Appeal maintainable. Since, the necessity of filing of an Appeal, along with the Certified Copy and the distinction between the Free Copy and the Certified Copy , as to the basis for filing of an Appeal has already been decided, by the larger Bench of this Tribunal, in that eventuality and in the light of the Chandra Prakash Judgment, the reference is answered accordingly, since, the principle of Limitation has already been settled that the Appeal would lie on the basis of the Certified Copy of the Judgment, and not on the basis of Free Copy. Hence, the reference is answered accordingly. Holding thereof the Free Copy provided under Rule 50 of NCLT Rules, 2016, cannot be treated as to be a Certified Copy referred to under Rule 22(2) of NCLAT Rules, 2016, and the Free Copy will not satisfy to be a Certified Copy, as defined under Section 2(j) of the NCLT Rules, to be read with Section 76 of the Evidence Act.

Issues Involved:
1. Definition and requirement of "Certified Copy" for filing an appeal under Section 61 of I & B Code, 2016.
2. Whether a "Free Copy" provided under Rule 50 of NCLT Rules, 2016, can be treated as a "Certified Copy" under Rule 22(2) of NCLAT Rules, 2016.
3. Applicability of Section 12(2) of the Limitation Act, 1963, in excluding the period between the pronouncement of the order and the supply of the free copy.
4. Necessity of applying for a certified copy to make an appeal maintainable.
5. Whether the delay of 3 days beyond the 30-day limitation period constitutes "Sufficient Cause" for condonation of delay.

Detailed Analysis:

1. Definition and Requirement of "Certified Copy":
The judgment primarily addresses the question of how the term "Certified Copy" should be construed for the purposes of filing an appeal under Section 61 of the I & B Code, 2016. Rule 22(2) of the NCLAT Rules, 2016 mandates that every appeal must be accompanied by a certified copy of the impugned order. The term "Certified Copy" is not defined under the NCLAT Rules but is defined under Section 2(9) of the NCLT Rules, 2016, and Section 76 of the Indian Evidence Act, 1872. According to Section 76, a certified copy is one provided on demand and upon payment of the requisite fee. Thus, the judgment concludes that for an appeal to be maintainable, it must be accompanied by a certified copy obtained under these conditions.

2. "Free Copy" vs. "Certified Copy":
The judgment thoroughly examines whether a "Free Copy" provided under Rule 50 of the NCLT Rules, 2016, can substitute for a "Certified Copy" required under Rule 22(2) of the NCLAT Rules, 2016. Rule 50 obligates the registry to send a certified copy of the final order to the parties free of cost, but this does not satisfy the requirements of a "Certified Copy" as defined under Section 76 of the Indian Evidence Act. The judgment refers to previous decisions, including the case of Munagala Roja Harsha Vardhini v. Vardhansmart Private Limited, which clarified that a free copy cannot be used as a certified copy for the purpose of filing an appeal. The judgment emphasizes that the free copy is only an intimation and does not meet the statutory requirements for a certified copy.

3. Applicability of Section 12(2) of the Limitation Act, 1963:
The judgment discusses the application of Section 12(2) of the Limitation Act, which allows for the exclusion of the time taken to obtain a certified copy in computing the period of limitation for filing an appeal. It references the Supreme Court judgment in V. Nagarajan v. SKS Ispat, which clarified that the time taken by the court to prepare the decree or order cannot be excluded unless an application for a certified copy is made within the prescribed limitation period. Therefore, the judgment holds that the period between the pronouncement of the order and the supply of the free copy cannot be excluded unless an application for a certified copy was made.

4. Necessity of Applying for a Certified Copy:
The judgment confirms that applying for a certified copy is mandatory for filing an appeal under Section 61 of the I & B Code, 2016. It reiterates that the act of applying for a certified copy is not just a technical requirement but also an indication of the appellant's diligence in pursuing the litigation. The judgment refers to the principles laid down in the case of V. Nagarajan v. SKS Ispat, which emphasized the necessity of applying for a certified copy to benefit from the exclusion of time under Section 12(2) of the Limitation Act.

5. Condonation of Delay:
The judgment examines whether the delay of 3 days beyond the 30-day limitation period constitutes "Sufficient Cause" for condonation of delay. It concludes that since the appellant did not apply for a certified copy within the prescribed period, they cannot benefit from the exclusion of time under Section 12(2) of the Limitation Act. Consequently, the delay cannot be condoned, and the appeal is barred by limitation.

Conclusion:
The judgment ultimately concludes that a "Free Copy" provided under Rule 50 of the NCLT Rules, 2016, cannot be treated as a "Certified Copy" for the purposes of Rule 22(2) of the NCLAT Rules, 2016. It emphasizes the necessity of applying for a certified copy and obtaining it on demand and upon payment of the requisite fee to make an appeal maintainable. The judgment also underscores the importance of adhering to the principles of judicial propriety and consistency, as established by larger benches and the Supreme Court.

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