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TMI Blog2022 (9) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... o good ground to allow section 5 application filed by the Appellant. Delay condonation application is dismissed. - I.A. No. 2588 of 2022 Company Appeal (AT) (Insolvency) No. 916 of 2022 - - - Dated:- 28-9-2022 - [ Justice Ashok Bhushan ] Chairperson And [ Barun Mitra ] Member ( Technical ) For the Appellant : Mr. Abhijeet Sinha , Mr. Naveen Hegde and Mr. Saikat Sarkar , Advocates For the Respondents : Mr. Kush Chaturvedi , Mr. Gaurav Adusumalli , Ms. Priyashree Sharma and Mr. Syed Taraz Alam , Advocates ORDER ASHOK BHUSHAN , J. This is an application under proviso to Section 61(2) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as I B Code ) praying for condonation of delay in filing the Appeal. The Appeal has been filed against the order dated 06.05.2022 in I.A. No. 1253 of 2021 in C.P. (IB) No. 2521(MB)/2018 filed by the Appellant. By the impugned order the application filed by the Appellant has been rejected. Challenging the order dated 06.05.2022 this Appeal has been filed on 06.07.2022. 2. The case of the Appellant under Delay Condonation Application is that the order was passed by the Adjudicating Authority on 06.05.2022, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication, the day from which such period is to be reckoned, shall be excluded. (2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. 6. The present is a case where the Appellant has applied for the certified copy of the order on 15.06.2022 i.e. after expiry of period of 30 days of limitation for filing an appeal. When application for obtaining certified copy of the order is applied after the period of limitation, Appellant is not entitled for benefit under Section 12(2) of the Limitation Act. Bombay High Court in Rajanarayan Singh Avadhraj Singh V. Smt Vidhyadevi, 2003 AIHC at page 3742 (Bom) has held that where an applicant slept for an entire period of limitation for filing an appeal and thereafter filed an application for certified copy of the judgment and decree, the benefit of Section 12(2) cannot be availed. 7. Learned counsel for the Appellant submits that since the order wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the requirements of Rule 22(2) of the NCLAT Rules. Section 12(2) of the Limitation 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 the 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 and prevent limitation from running. Accepting such a construction will upset the timely framework of the 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. 34. On the second question, Rule 22(2) of the NCLAT Rules mandates the certified copy being annexed to an appeal, which continues to bind litigants under the IBC. While it is true that the tribunals, and even this Court, may choose to exempt parties from compliance with this procedural requirement in the interest of substantial justice, as re-iterated in Rule 14 of the NCL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hon ble Supreme Court in Para 33 has also clearly held that it is not open to a person aggrieved by an order under IBC to await the receipt of a free certified copy and prevent limitation from running. When we look into the certified copy which has been annexed with the Appeal by the Appellant which is sought to be challenged, the certified copy annexed by the Appellant is free of cost copy issued on 04.07.2022. It is also to be noticed that the learned counsel for the Applicant (Appellant) was present when the order was pronounced by the Adjudicating Authority on 06.05.2022, which is noted in the order passed on 06.05.2022. When judgment is delivered by the Adjudicating Authority in open court, period of limitation starts running and could not be prevented and Appellant can neither wait for free of cost certified copy and nor he is prevented from applying for certified copy of the order sought to be challenged in appeal. He is entitled to take benefit of Section 12(2) by excluding the period during which certified copy was under preparation. 12. In the present case, as noted above, certified copy is claimed to be applied by the Appellant on 15.06.2022 i.e. after expiry of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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