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TMI Blog2022 (10) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... , the presentation of the Application has to be treated from the date of initial presentation and presentation of the Application shall not be treated from the date when defects were removed. The Applicant(s) were entitled to exclude the period from 12.05.2022 to 14.06.2022, which was time requisite for obtaining certified copy of the order dated 10.05.2022. If the time requisite is excluded, limitation of 30 days time for filing the Appeal shall be till July, 12.07.2022 - appeal is filed within the period of limitation and Appeal Nos. 920 and 922 of 2022 were filed within 15 days beyond the period of 30 days. Let the Appeal(s) be listed for admission on 12.10.2022. - Company Appeal (AT) (Insolvency) No. 920 of 2022 & Interlocutory Application No.3301 of 2022 Company Appeal (AT) (Insolvency) No. 922 of 2022 & Interlocutory Application No.3251 of 2022 , Company Appeal (AT) (Insolvency) No. 1072 of 2022 & Interlocu - - - Dated:- 11-10-2022 - [ Justice Ashok Bhushan ] Chairperson And [ Barun Mitra ] Member ( Technical ) For the Appellant: Mr. Anupam Lal Das, Sr. Advocate with Mr. Anirudh Singh, Mr. Prashant Kumar, Mr. Siddharth Iyer and Mr. Saurabh Suman Sinha, Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in these Appeal(s). 3. An Application for certified copy of the order was made by the Applicant on 12.05.2022 with court fee of Rs.5/-. The balance court fee was paid on 09.06.2022 and certified copy was ready and delivered on 14.06.2022. The case of the Applicant in the Application is that the order of the Adjudicating Authority dated 10.05.2022 was pronounced virtually on 10.05.2022, but the copy of the order was uploaded only on 31.05.2022 and after 31.05.2022, the Applicant came to know about the details of the order and then they deposited the balance court fees on 09.06.2022. The Applicant s case is that entire period from 12.05.2022 to 14.06.2022, which was time requisite for obtaining the certified copy of the order need to be excluded as per Section 12, sub-section (2) of the Limitation Act, 1963 and when the said period is excluded, the Appeal No.1072 of 2022, which was presented on 06.07.2022 is well within 30 days and Appeal Nos.920 and 922 of 2022 presented on 13.07.2022 are filed within 45 days from the date of the impugned order. It is submitted that if date of uploading of judgment of Adjudicating Authority, i.e., 31.05.2022 is taken, the Appeal are within 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taining a copy of the order shall be excluded. In the present case, there is no dispute that Application for certified copy of the order was applied on 12.05.2022 with court fee of Rs.5/- only. Deficient court fee was paid on 09.06.2022. The short question to be answered is that as to whether exclusion of period for obtaining of certified copy shall be from 12.05.2022 to 14.06.2022 or 09.06.2022 to 14.06.2022. NCLT Rules, 2016, Rule 2 in the definition clause defines application as follows: 2.(5) application means any application, interlocutory application or proceedings filed under the provisions of the Act, including any transferred application or transferred petition as defined under sub-rule (29). 7. Rule 2, sub-rule 12, defines fee in following words: 2(12) fee means the amount payable in pursuance of the provisions of the Act and these rules for any petition or application or interlocutory application or a document or for certified copy of document or order of the Tribunal or such other paper as may be specified in Schedule of Fees to these rules and includes any modifications as may be made thereto or any fee as prescribed for filing of documents to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertified copy was filed with deficient court fee, under Rule 28, the Applicant was to be noticed about the defect and was required to comply the same within seven days. There is no material on record to show as to when the Applicant was intimated to remove the defect, but the fact remained that deficient court fee was submitted on 09.06.2022 and thereafter, the Application was processed and certified copy was prepared on 14.06.2022. 12. This Tribunal had occasion to consider Rule 28 of the NCLT Rules, 2016 in Company Appeal (AT) (Insolvency) No 721 of 2022 Krishan Kumar Basia vs. State Bank of India. The question in the above case was as to what is the date of presentation of the Application, if there were defects in the Application, which were subsequently cured and application was numbered. This Tribunal held that the filing of the Application shall be from the date when it was initially filed and subsequent scrutiny or numbering of the application is not relevant. Applying the ratio of the above judgment of this Tribunal, it is clear that Application for certified copy of the order dated 10.05.2022 shall be treated to be filed on 12.05.2022 despite they being deficient of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opies are to be produced within 3 days from the publication of the notice calling for the stamp papers. Under the present rule the litigant public and members of the Bar are denied the opportunity of getting 3 clear working days for production of stamp papers. The amendment is intended to overcome the difficulty . Ultimately after considering large number of cases, the High Court in paragraph 13 concluded that Appellant is entitled to exclude the time granted for producing the stamp paper as time requisite for obtaining the copy of the decree. Paragraph 13 of the judgment is as follows: 13. Therefore with great respect to the learned Judges who decided 1961 KLT 321 and 1992 (2) KLT 929 we are constrained to hold that we cannot agree with their view. We therefore overrule 1961 KLT 321 and 1992 (2) KLT 929. We further hold that the appellant is entitled to exclude the time granted under R. 242 of the Civil Rules of Practice, Kerala for producing the stamp paper as 'time requisite' for obtaining a copy of the decree appealed from for the purpose of S. 12(2) of the Limitation Act, 1963. The office is therefore directed to number the appeal as one filed within the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to Mr. Roy. the time from July 7, 1954: to September 21. 1954, was not the time requisite for obtaining a copy of the order appealed against. The Calcutta Electric Supply Corporation Ltd. was not entitled to exclusion of this period under Section 12(2) of the Indian Limitation Act. As such the appeal filed by the Calcutta Electric Supply Corporation Ltd. on October 29, 1954, when the Civil Counts reopened after the Puja holidays, was barred by the special limitation prescribed under Section 141(2) of the Act. 25. The expression time requisite for obtaining a copy as used in Section 12(2) of the Indian Limitation Act is a strong expression; it means something more than time required. It means time properly required and throws upon the Appellant the necessity of showing that no part of the delay beyond the prescribed period was due to his default. The delay caused by the carelessness or negligence in paying for the copy cannot be excluded from the computation of the period of limitation. 26. If application for copy, made by the Respondent Company, required to be accompanied by any fees, legally prescribed, then the failure on the part of the Respondent Calcutta Electric S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove period is excluded Mr. Roy admits, that no further question of limitation arises. We therefore hold that the appeal before the lower appellate court was not barred by limitation. 14. The above judgment does not directly support the submission of learned Counsel for Respondent No.3. More so, in the facts of the present case, there is statutory Rules, namely NCLT Rules, 2016, under which the certified copy was applied and the Application being deficient is required to be communicated to the Applicant and there is prescribed time for removing the defects. 15. Now, we come to the next judgment relied by Respondent No.3, i.e., AIR (1954) AP 104 Dagduba and Ors. vs. Abdul Gafoor Khan. In the case before the High Court of Hyderabad, Andhra Pradesh, the submission was made that Appellant was entitled to exclusion of period between date of the judgment and the date of signing the decree under Section 12 of the Limitation Act. In the above case, the High Court of Hyderabad held that time requisite does not begin until an application for copies has been made. Following was laid down in paragraph 24: 24. It is true that according to Order 20, Rule 7, Code of Civil Procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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