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TMI Blog2023 (3) TMI 449X X X X Extracts X X X X X X X X Extracts X X X X ..... and further that it was uploaded by the NCLT (Tribunal) on 21.11.2022, this Tribunal, pertinently points out the Judgment of the Hon ble Supreme Court in Central Bank of India v. Vrajlal Kapurchand Gandhi Anr. [ 2003 (7) TMI 708 - SUPREME COURT ], wherein, it is observed that This Court cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable However, the Court can pass appropriate orders if a party moves it contending that the order has not correctly reflected happenings in Court. It cannot be gainsaid that in view of Article 141 of the Constitution of India, the Law, declared by the Hon ble Supreme Court is binding on all Subordinate Courts, Tribunals, Appellate Tribunal, etc., as opined by this Tribunal. In the instant case, the Order, dismissing Ivn.P/7(CHE)/2022 in IA/248(CHE)/2022 in IBA/471/2020, was Pronounced by the Adjudicating Authority (Tribunal) on 11.10.2022 in Open Court itself, at once, and hence, the Petitioner / Appellant, cannot have any grievance, because in the presence of its Authorised Representative, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent : Mr. S.R. Rajagopal, Senior Advocate Respondent For Mr. T. Dhanasekaran, Advocate ORDER (Virtual Mode) Justice M. Venugopal, Member (Judicial): IA No. 149 of 2023 in Comp. App (AT) (CH) (INS.) No. 41 of 2023: Preface: According to the Petitioner / Appellant, the impugned order dated 11.10.2022 in Ivn.P/7(CHE)/2022 in IA/248(CHE)/2022 in IBA/471/2020, was never pronounced by the Adjudicating Authority ( National Company Law Tribunal , Division Bench, Court - I, Chennai), and the Petitioner / Appellant , received the Free and Certified True Copy of the said impugned order , only on 24.11.2022. Petitioner / Appellant s Pleas: 2. It is represented on behalf of the Petitioner / Appellant that the Designated Partner, representing the Petitioner / Appellant , was diagnosed with a Fistula Opening in the Perianal skin and thus was in the process of numerous Medical Tests, as required by his Doctor from 22.12.2022. Further, the Petitioner / Appellant , had filed the Appeal Type Set , along with the Requisite papers , accompanying the same in E-filing Portal on 23.11.2022 and that the Petitioner / Appellant , was not in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date of Physical Receipt of Order Copy 24.11.2022 No delay if physical receipt of order is taken as there was no pronouncement or dictation ion open court 4 Date which cannot be taken for computation for limitation is the date of order 11.10.2022 as not pronounced and not dictated in open court and if pronounced then not uploaded till 21.11.2022 thereby making it impossible for appellant to prefer an appeal as per SC judgement as given above 6. In fine, on behalf of the Petitioner / Appellant, it is prayed that the Delay of Five Days , from 23.12.2022 to 28.12.2022, that has occurred in physical filing of Hard Copies of the Appeal Type Set of papers, may be Condoned , since the said Delay , is neither wilful nor wanton, but, due to the aforesaid reason, and that IA No. 149 of 2023 in Comp. App (AT) (CH) (INS.) No. 41 of 2023, may kindly be allowed, in the interest of Justice. Appellant s Decisions : 7. On behalf of the Petitioner / Appellant, the Judgment of the Hon ble Supreme Court of India dated 29.10.2020, in Balaji Baliram Mupade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presence of the counsel for the parties. Thus, it appears that even the concluding paragraph was not penned down. The judgment is stated not to have been reserved. The file was, however, sent back to the Registry after 9 months on 15.05.2020 and the judgment was uploaded on the same date. The certified copy of the order was applied on 29.01.2020 (it is the say of the appellants that there was no pronouncement of any order on 31.07.2019). There was some lapse in preparation of the certified copy due to Covid. It is stated that from the report received from the Court Master of the concerned Court, some aspects of the different number of cases dealt with by the learned Judge have been set out as also some personal difficulty of the Judge for some period of time. In a recent judgment in Balaji Baliram Mupade Anr. v. The State of Maharashra Ors. [Civil Appeal No. 3564 of 2020] dated 29.10.2020, we had been called upon to comment on a similar scenario. We had emphasized that judicial discipline requires promptness in delivery of judgments, an aspect repeatedly emphasized by this Court when this problem gets compounded where the result may be known but not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sides Learned Counsels, were present at that time, when the matter was Heard . 11. It is represented on behalf of the Respondent that an Order in IA (IBC)/753/CHE/2021 in IBA/471/2020, was passed by the Adjudicating Authority , ( Tribunal ), on 08.07.2022, in rejecting the Appellant s Claim to consider it as Financial Creditor and to include it in the Committee of Creditors . Because of the fact that the Appellants , came in the Category of Shareholders , the IA (IBC)/753/CHE/2021 in IBA/471/2020, was dismissed by the Tribunal , on 08.07.2022. Against which, Comp. App (AT) (CH) (INS.) No. 364 of 2022, is filed by the Appellant , and the same is pending. 12. The Learned Counsel for the Respondent submits that the Tribunal at once dismissed the Ivn.P/7(CHE)/2022 in IA/248(CHE)/2022 in IBA/471/2020, in the presence of Learned Counsel, who had immediate knowledge of the Order dated 11.10.2022. In fact, the Order dated 11.10.2022, was pronounced forthwith by the Adjudicating Authority ( National Company Law Tribunal ), as per Rule 150 (1) of the NCLT Rules, 2016, and in fact, the Petitioner / Appellant , has knowledge about the Order on 11.10.2022 itself, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (ii) is the annexation of a certified copy mandatory for an appeal to the NCLAT against an order passed under the IBC must be based on a harmonious interpretation of the applicable legal regime, given that the IBC is a Code in itself and has overriding effect. Sections 61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the order is made available to the aggrieved party , in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of the IBC, the aggrieved party is expected to exercise due diligence and apply for a certified copy upon pronouncement of the order it seeks to assail, in consonance with 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack upon the Order of this Tribunal dated 09.01.2023, in IA No. 1025 of 2022 in Comp. App (AT) (CH) (INS.) No. 418 of 2022, between Sanket Kumar Agarwal Anr. V. APG Logistics Pvt. Ltd., whereby and whereunder, at Paragraphs 30 to 32, it is observed as under: 30. In the instant case, the order impugned in CP/IB/113/CHE/2021 was passed by the Adjudicating Authority ( National Company Law Tribunal , Special Bench I, Chennai) on 26.08.2022. The Appellants , had preferred the instant Comp. App (AT) (CH) (INS.) No.418 of 2022 before this Tribunal , through E-Portal on 10.10.2022 (on the 46th day vide Transaction Ref. No.: 1010220030268 dated 10.10.2022; 7.52 P.M.), whereby, a Sum of INR 6,000, through Internet based Online payment, in the account of Filing Fee , was received by the Office of the Registry , of this Tribunal . In the present case, this Tribunal , aptly points out that the Appellants , had filed the physical copy of the Appeal Paper Books , before the Office of the Registry of this Tribunal , only on 31.10.2022. 31. It cannot be gainsaid, that the Expiry of 30 days , after the Pronouncement of the impugned order , dated 26.08.2022, was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ---------------------------------------------------------------------------------------------- 22. It transpires that the Adjudicating Authority ( NCLT , Division Bench, Court-I, Chennai) on 11.10.2022, had dismissed IVN.P/7(CHE)/2022. It comes to be known that before the Adjudicating Authority ( Tribunal ), as Item No. 201 - IBA/471/2020 IVN.P/7(CHE)/2022, under Rule 11 of NCLT Rules, 2016; SMS Foundation Investment LLP v. RP of M/s. Harsha Exito Engineering Pvt. Ltd., came up for Hearing at 2.30 P.M., under Ordinary List and name of the Practising Company Secretary is mentioned as K. Gaurav Kumar , and the Resolution Professional , is mentioned as J. John Ohilvi and IVN.P/7(CHE)/2022 was Dismissed on 11.10.2022 in Open Court itself. NCLT Rules 2016: 23. At this juncture, this Tribunal , significantly points out Rule 150 of NCLT Rules 2016 , proceeds as under: 150. Pronouncement of Order.- (1) The Tribunal, after hearing the applicant and respondent, shall make and pronounce an order either at once or, as soon as thereafter as may be practicable but not later than thirty days from the final hearing. (2) Every order of the Tribunal shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before this Court to the contrary. This Court cannot launch into an enquiry as to what transpired in the High Court. It is simply not done. Public policy and judicial decorum do not permit it. Matters of judicial record in that sense are unquestionable However, the Court can pass appropriate orders if a party moves it contending that the order has not correctly reflected happenings in Court. 27. It cannot be gainsaid that in view of Article 141 of the Constitution of India , the Law , declared by the Hon ble Supreme Court is binding on all Subordinate Courts , Tribunals , Appellate Tribunal , etc., as opined by this Tribunal . 28. Therefore, keeping in mind of the Propriety , Sobriety , Public Policy , Judicial Decorum and Comity of Judicial Discipline , the Attendance-cum-Order Sheet , in respect of the Impugned Order of the Hearing , held on 11.10.2022 at 2.30 P.M., through Video Conferencing at National Company Law Tribunal , Division Bench, Court-I, Chennai, and in view of the assertion made on behalf of the Respondent that the impugned order of Dismissal , in respect of Ivn.P/7(CHE)/2022 in IA/248(CHE)/2022 in IBA/471/2020, was Pronounced at o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner / Appellant , on 24.11.2022. Result : From the above, it is candidly clear that the Petitioner / Appellant , had E-filed the Appeal Papers on 23.12.2022, i.e. on 73rd day, and the physical filing , was made, on 28.12.2022. By taking into account of the fact that 30 days Limitation Period , ends on 10.11.2022 (from the date of Impugned Order , i.e., on 11.10.2022) and the 45 days period , comes to an end, on 25.11.2022 , and keeping in mind of another fact that the E-filing of the Appeal Papers , were done on behalf of the Petitioner / Appellant , on 23.12.2022, and after deducting (30 + 15 = 45 days - the Outer Limit Period ), still there is a Delay of 28 days , and there is no power, enjoined upon Appellate Tribunal , to condone the Delay , beyond the permissible / prescribed period , as per Section 61 of the I B Code, 2016. Looking at from that angle, the IA No. 149 of 2023 in Comp. App (AT) (CH) (INS.) No. 41 of 2023 (Filed by the Petitioner / Appellant - Condone Delay Application ), is Dismissed , by this Tribunal , to secure the ends of Justice . Comp. App (AT) (CH) (INS.) No. 41 of 2023 : Owing to the dismissal of IA ..... X X X X Extracts X X X X X X X X Extracts X X X X
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