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TMI Blog2023 (12) TMI 1073X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Schedule of Fees of the NCLAT Rules, 2016 provides for the Registry to send a certified copy of the final Order to the parties concerned free of cost and the certified copies may be made available with costs as per schedule of fees, in all cases. Hence, it is clear that the Appellant itself could have applied for a certified copy by making an Application with the requisite fee, therefore, the contention of the Appellant that it was a Third party to the proceedings, is of no relevance. The Hon ble Supreme Court in the case of V NAGARAJAN VERSUS SKS ISPAT AND POWER LTD. ORS. [ 2021 (10) TMI 941 - SUPREME COURT] addressed the issue of the commencement date of the period of limitation for filing an Appeal under Section 61 of the Code. In this aforenoted Judgment, the Hon ble Supreme Court answered the question as to when the clock for calculating the limitation period would begin to run for Appeals filed under the Code and recorded the same in Paras 33 through 35, after taking into due consideration the provisions of Rule 22(2) of the NCLAT Rules, 2016, Section 12 of the Limitation Act, and Section 421 of the Companies Act holding that While it is true that the tribunals, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not apply for a certified copy of the Order and was not a privy to the pleadings in the Application; that the Liquidation Application of the Corporate Debtor IA/919/2023 was reserved for Orders on 11.08.2023 and therefore the Third Respondent waited for the outcome of the Liquidation Application in order to decide whether to prefer an Appeal against the Impugned Order; that the Liquidation Order of the Corporate Debtor was passed on 12.09.2023 and the same was made available on 13.09.2023, by which Order the Second Respondent was appointed as Liquidator and not the Third Respondent, subsequent to which this Appellant decided to file the Appeal. 3. It is submitted that the Applicant/Appellant had placed the e-copy of the Impugned Order before the management to take a decision and since it was not able to obtain the certified copy of the Impugned Order on time, the Appeal could not file on time. 4. This Tribunal on 18.10.2023 issued Notice in IA No. 1085/2023 and permitted the Respondents to file their reply. Learned Senior Counsel appearing for the First Respondent submitted that the instant Appeal has been filed beyond the statutory period of 30+15 days in terms of the Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns as may be directed by the President by a general or special order, a person who is not a party to the proceeding, may also be allowed to inspect the proceedings after obtaining the permission of the Registrar in writing. 7. It is contended by the first Respondent s Counsel that in terms of the above Rules enumerated under Part XIV of the NCLAT Rules, the Appellant could have made an Application for the inspection of pleadings before the Registry but did not make any endeavour to do so, despite the fact that the Appellant has 85% voting share in the CoC of the Corporate Debtor. 8. It is seen from the record that the Impugned Order is dated 09.08.2023 and it is admitted by the Applicant/Appellant that the Order was uploaded on 10.08.2023. The 30 day period from 10.08.2023 ends on 08.09.2023. The Appeal was e-filed on 23.09.2023 thereby, with a delay of 15 days. Section 61 of the Code deal with Appeals and Appellate Authority and reads as hereunder: Section 61. Appeals and Appellate Authority. (1) Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately, upon e-copy of the Impugned Order was made available and the documents relating to the Application was shared by the 3rd Respondent, the Applicant had placed the same before the management of the Applicant to take a decision on preferring an appeal. The Applicant submits that it had time again informed the 3rd Respondent regarding preferring an appeal. However, owing to the above, the appeal could not be preferred by the 3rd Respondent. 8. The Applicant/Appellant states that, since it was not able to obtain the certified copy of the Impugned Order in time and due to the above reasons, the appeal could not be filed in time. Hence, the Applicant/Appellant is filing the present application. Assuming the e-copy of the Impugned Order was uploaded on the website of the Adjudicating Authority on 9.8.2023, the 45 days' time period expires on 23.9.2023 (Saturday), which is a non-working day. Therefore, the 45 days' time period expires on 25.9.2023 being the next working day. (Emphasis Supplied) 11. It is apposite to rely on the Judgement of Hon ble Supreme Court Sheo Raj Singh V. Union of India, AIR 2023 SC 5109 in which it is observed as follows: 29. Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anation and an excuse and only then to exercise discretion to condone the delay. In the instant case, it is crystal clear that the Appellant was aware of the Impugned order on 10.08.2023 itself and the justification given that the Appellant had requested the Third Respondent/The erstwhile RP to apply for a certified copy of the Impugned Order since it was not a party to the proceedings is rejected as Rule 50 read with Clause 31 of the Schedule of Fees of the NCLAT Rules, 2016 provides for the Registry to send a certified copy of the final Order to the parties concerned free of cost and the certified copies may be made available with costs as per schedule of fees, in all cases. Hence, it is clear that the Appellant itself could have applied for a certified copy by making an Application with the requisite fee, therefore, the contention of the Appellant that it was a Third party to the proceedings, is of no relevance. 13. The Hon ble Supreme Court in the case of V. Nagarajan vs. SKS Ispat Power Limited Ors. cited in (2022) 2 SCC 244 has addressed the issue of the commencement date of the period of limitation for filing an Appeal under Section 61 of the Code. In this aforenot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ural requirement in the interest of substantial justice, as re-iterated in Rule 14 of the NCLAT Rules, the discretionary waiver does not act as an automatic exception where litigants make no efforts to pursue a timely resolution of their grievance. The appellant having failed to apply for a certified copy, rendered the appeal filed before the NCLAT as clearly barred by limitation. on limitation. Accordingly, the present appeal under Section 62 of the IBC stands dismissed. (Emphasis Supplied) 14. Learned Senior Counsel appearing for the Appellant submitted that since the Liquidation Order was passed on 12.09.2023 and the ERP was replaced by the Liquidator, the certified copy could not be obtained on time. We are of the considered view that neither the provisions of the NCLAT Rules, 2016 nor the Code bars the Appellant from filing an Appeal within the statutory limitation period provided for under Section 61(3) of the Code and requesting the erstwhile RP to seek a certified copy and awaiting the outcome of the Liquidation Application, further renders the argument of the Learned Counsel for the Appellant, that the delay may be condoned for the foregoing reasons, unsusta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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