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TMI Blog2024 (3) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... eal (AT) (Insolvency) No. 1076 of 2022 & I.A. No.3159, 3160, 3161 of 2022 Company Appeal (AT) (Insolvency) No. 1085 of 2022 & I.A. No.3198, 3143, 3199,3200 of 2022 Company Appeal (AT) (Insolvency) No. 1135 of 2022 & I.A. No.3401, 3402, 3362 of 2022 Company Appeal (AT) (Insolvency) No. 1136 of 2022 & I.A. No.3407, 3408 of 2022 Company Appeal (AT) (Insolvency) No. 757 & 758 of 2022 & I.A. No. 2080,2081, 2082, 2083,2084, 2085 of2022 Company Appeal (AT) (Insolvency) No. 964 & 965 of 2022 & I.A. No. 2749,2750, 2751, 2752,2753, 2754, 4956 of 2022 Company Appeal (AT) (Insolvency) No. 1015 of 2022 & I.A. No.2961, 2962, 2963 of 2022 Company Appeal (AT) (Insolvency) No. 1122 of 2022 & I.A. No.3340, 3341, 3342,3343 of 2022 Company Appeal (AT) (Insolvency) No. 1143 of 2022 & I.A No.3434, 3435, 3436,3437, 3438 of 2022 Company Appeal (AT) (Insolvency) No. 1174 of 2022 & I.A. No.3500, 3536, 3537 of 2022 Company Appeal (AT) (Insolvency) No. 270 of 2023 & I.A. No.950, 951, 4269 of 2023 Comp. App. (AT) (Ins) No. 1079 of 2023 & I.A. No. 3727, 3728, 4508 of 2023 [Justice Rakesh Kumar Jain] Member (Judicial) And [Mr. Naresh Salecha] Member (Technical) For the Appellant : Mr. Swastik Singh & Mr. Hima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Soni Realtors Pvt. Ltd. & Anr. 4. Comp. App. (AT) (Ins) No. 1135 of 2022 Sanjay Kumar Bansal Vs. Soni Realtors Pvt. Ltd. &Ors. 5. Comp. App. (AT) (Ins) No. 1136 of 2022 Sanjay Kumar Bansal Vs. Shri Manoj Kulshreshta&Ors. 6. Comp. App. (AT) (Ins) No. 757 & 758 of 2022 Capital Ventures Pvt. Ltd. Vs. Manoj Kulshrestha Resolution Professional Soni Realtors Pvt. Ltd. & Anr. 7. Comp. App. (AT) (Ins) No. 964 & 965 of 2022 Amit Garg Vs. Manoj Kulshreshta& Anr. 8. Comp. App. (AT) (Ins) No. 1015 of 2022 Sukhjinder Singh & Anr. Vs. Soni Realtors Pvt. Ltd. 9. Comp. App. (AT) (Ins) No. 1122 of 2022 Somesh Arora & Anr. Vs. Soni Realtors Pvt. Ltd. Through Resolution Professional 10. Comp. App. (AT) (Ins) No. 1143 of 2022 Rakhi Thakreja&Ors. Vs. Soni Realtors Pvt. Ltd. &Ors. 11. Comp. App. (AT) (Ins) No. 1174 of 2022 S. E. Investments Ltd. Vs. Soni Realtors Pvt. Ltd. & Anr 12. Comp. App. (AT) (Ins) No. 270 of 2023 Manan Chopra Vs. Soni Realtors Pvt. Ltd. 13. Comp. App. (AT) (Ins) No. 1079 of 2023 Anil Chopra Vs. Soni Realtors Pvt. Ltd. 7. Although these appeals are pending for some time but no effective order has been passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 days in filing appeal IA No. 3198 of 2022 @ Pg. No. 290 Application for condonation of delay is filed with the appeal Condonation is sought for 4 days Certified copy of the impugned order is filed, which was certified copy applying on 05.08.2022 IA No. 3199 of 2022 Application filed for seeking exemption from filing certified copy. 4. Sanjay Kumar Bansal Vs. Soni Realtors Pvt. Ltd. &Ors. Company Appeal (AT) (Ins) No. 1135 of 2022 Appeal filed on 26.07.2022 Delay of 16 days in filing appeal IA 3402/2022 Application condonation delay is filed. No. for of Certified copy of the impugned order is filed However, certified copy is applied on 12.08.2022 5. Sanjay Kumar Bansal Vs. Soni Realtors Pvt. Ltd. &Ors. Company Appeal (AT) (Ins) No. 1136 of 2022 Appeal filed on 11.07.2022 Delay of 1 day in filing appeal Application for condonation of delay is not filed. Certified copy of the impugned order is filed. However, certified copy is applied on 12.08.2022. 6. Capital Ventures Pvt. Ltd. Vs. Manoj Kulshrestha RP of Soni Realtors Pvt. Ltd. &Ors. Company Appeal (AT) (Ins) No. 757 & 758 of 2022 Appeal filed on 05.07.2022 There is no delay in fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A No. 3537 of 2022 @ Pg. No. 835 Application filed for seeking exemption from filing certified copy. 12. Manan Chopra Vs. Soni Realtors Pvt. Ltd. Company Appeal (AT) (Ins) No. 270 of 2023 Appeal filed on 11.07.2022 Delay of 1 day in filing appeal Condonation of delay application is not filed Certified copy of the impugned order is attached. However, certified copy of the impugned order applied on 28.09.2022. 13. Anil Chopra Vs. Soni Realtors Pvt. Ltd. Company Appeal (AT) (Ins) No. 1079 of 2023 Appeal filed on 11.07.2022. Delay of 1 day in filing appeal Application for condonation of delay is not filed. Only photocopy of certified copy is attached, which was applied on 28.09.2022. IA No. 3727 of 2023 @ Pg. No. 223 Application filed for seeking exemption from filing certified copy. 9. The argument raised by Counsel for the RP is that the filing of certified copy is mandatory in an appeal filed under the Code before the Appellate Tribunal as held by the Hon'ble Supreme Court in the case of V. Nagarajan (Supra) and since the certified copy either has not been annexed or it has been applied even after the expiry of the prescribed period of 30 days much less the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by both sides and we find that the Appellant herein had filed for rectification of Order dated 17.01.2023 on 15.02.2023 which is within 30 days of the said Order. The Order dated 17.01.2023 was partly rectified vide Order dated 21.03.2023 and, excluding the period taken for obtaining the certified copy, the Appeal has been filed within 30 days of the said Order. The Order dated 17.01.2023 has merged with the Order dated 21.03.2023 due to partial rectification." 12. It is further argued that the Appellant has filed the appeal alongwith application i.e. I.A. No. 3199 of 2022 for seeking exemption from filing the certified copy which is still pending in which the order is yet to be passed by this Court though it is not disputed that the certified copy was applied on 05.08.2022, allegedly after the expiry of limitation prescribed under Section 61(2) of the Code. He has argued that I.A. No. 3199 of 2022 has been filed invoking Rule 11 which deals with the inherent powers of this Tribunal, Rule 14 deals with the power of this Tribunal to exempt and Rule 15 deals with the power of this Tribunal to extend time and submitted that the application i.eI.A. No. 3199 of 2022 may be allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85 of 2022, Counsel for the Respondent has submitted that the impugned order was passed on 10.06.2022 and if limitation is to be counted from 11.06.2022, in terms of the Rule 3 and Section 12 of the Act, the appeal could have been filed till 11.07.2022 but it has been filed on 14.07.2022, beyond the period of 30 days for which the Appellant has filed an application for seeking condonation of delay of four days, therefore, the appeal cannot be stated to have been filed within the period of 30 days which is prescribed under Section 61(2) of the Code. It is further submitted that even if there is an order passed by the Adjudicating Authority for rectification of the order on 01.07.2022 on the application of the Respondent, it would not extend the period of limitation for filing the appeal from 01.07.2022 as it was only a rectification of an error of omission. It is submitted that in any case, the certified copy has been applied after the expiry of 30 days, prescribed under Section 61(2) of the Code, therefore, the decision of the Hon'ble Supreme Court in the case of V. Nagarajan (Supra) would apply. It is also argued that in so far as the application i.e. I.A. No. 3199 of 2022 is conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the reference to the provisions of the Code in Rule 1 of Chapter VII of the Original Side Rules cannot be interpreted to limit the scope of such reference to only the provisions of the Code as were existing on the date of such incorporation. It was clearly the intention of the High Court when it framed the Original Side Rules that the plaint should be in conformity of the provisions of Order VI and Order VII of the Code. By necessary implication reference will also have to be made to Section 26 and Order IV of the Code which, along with Order VI and Order VII, concerns the institution of suits. We are ad idem with Mr. Pradip Ghosh on this score. The provisions of Sub-rule (3) of Rule 1 of Order IV of the Code, upon which the Division Bench of the Calcutta High Court had placed strong reliance, will also have to be read and understood in that context. The expression "duly" used in Sub-rule (3) of Rule 1 of Order IV of the Code implies that the plaint must be filed in accordance with law. In our view, as has been repeatedly expressed by this Court in various decisions, rules of procedure are made to further the cause of justice and not to prove a hindrance thereto. Both in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tended on the ground that the certified copy was applied on 44th day i.e. 15.09.2022 and obtained on 19.09.2022 and the said period was sought to be excluded about which the Court has said that the period for applying the certified copy and its preparation can be excluded only if the certified copy is applied within the prescribed period of limitation i.e. 30 days and not during the period of 15 days, a period which may be extended on showing sufficient cause provided under Section 61(2) proviso. 20. In rebuttal, Counsel for the Respondent has submitted that these appeals have been filed on 05.07.2022 and is within the period of limitation. The certified copy is not filed but I.A. No. 2082-2083 of 2022 has been filed for seeking exemption from filing certified copy of the impugned order and has reiterated the argument raised in aforesaid appeals. 21. Rahul Malhotra, Counsel appearing on behalf of the Appellant has argued CA (AT) (Ins) No. 1143 of 2022. This appeal has been filed on 21.07.2022. I.A No. 3434 of 2022 has been filed for seeking condonation of delay. The certified copy has not been annexed but the application bearing I.A. No. 3437 of 2022 has been filed for seeking ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opy of the impugned order has been filed. Rest of the argument raised in respect of the other cases and also their objection has been reiterated. 23. Shivam Singh, Counsel appearing on behalf of the Appellant has argued CA (AT) (Ins) No. 1076 of 2022. This appeal has also been filed on 13.07.2022. There is an application for condonation of delay bearing I.A. No. 3161 of 2022 and I.A. No. 3160 of 2022 for seeking exemption from filing certified copy of the impugned order but the certified copy has not been attached. He has adopted the argument of other counsels appearing on behalf of the Appellants and in rebuttal, Counsel for the Respondent has reiterated his stand taken in aforesaid appeals. 24. Dheeraj Gupta, Counsel appearing on behalf of the Appellant has argued CA (AT) (Ins) No. 964 & 965 of 2022. This appeal is filed on 22.07.2022 and thus there is a delay in filing the appeal for which the application bearing 2753-2754 of 2022 has been filed. I.A No. 2751-2752 of 2022 has also been filed for seeking exemption from filing certified copy of the impugned order but the certified copy has not filed nor there is any indication that the certified copy has been applied. He has sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion would start running from 11.06.2022 and shall come to end on 11.07.2022 whereas the appeal through efiling was filed on 21.07.2022 and hard copy is filed on 26.07.2022, therefore, the Appellant has himself filed an application bearing I.A. No. 3340 of 2022 for condonation of delay of 11 days. It is argued that the application for condonation of delay, filed under Section 61(2) of the proviso, is a separate subject matter. 29. Himanshu Dagar, Counsel appearing on behalf of the Appellant has argued CA (AT) (Ins) No. 691 of 2023. This appeal is filed on 11.07.2022, therefore, it is within the period of 30 days but the certified copy was applied on 28.09.2022 and an application bearing I.A. No. 2302 of 2023 is filed for seeking exemption from filing certified copy of the impugned order. 30. No one came forward on behalf of the other Appellants to argue the rest of the appeals. 31. We have heard Counsel for the parties and perused the record with their able assistance. 32. Appeals before the Appellate Authority are filed under Section 61 of the Code. The relevant part of Section 61 of the Code is reproduced as under:- "61. Appeals and Appellate Authority. - (1) Notwithstand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with memorandum of appeal. 31. Interlocutory applications.- Every interlocutory application for stay, direction, condonation of delay, exemption from production of copy of order appealed against or extension of time prayed for in pending matters shall be in Form NCLAT-2 and the requirements prescribed in that behalf shall be complied with by the applicant, besides filing a affidavit supporting the application." 35. As per Rule 22, every appeal has to be presented in Form NCLAT-1 and as per Rule 22(2) every appeal is to be accompanied by a certified copy of the impugned order. Rule 31 pertains to the Interlocutory Applications which may be for stay, direction, dispensing with, condonation of delay or calling of records and all such applications are to be filed in Form NCLAT-2. 36. Chapter- I of the Rules deals with definitions, forms etc. in which Rule 11, 14 and Rule 15 are relevant which are reproduced as under:- "11. Inherent powers.- Noting in these rules shall be deemed to limit or otherwise affect the inherent powers of the Appellate Tribunal to make such orders or give such directions as may be necessary for meeting the ends of justice or to prevent abuse of the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied within the period of 30 days but in rest of the appeals it is beyond the period of even 45 days. 40. It is pertinent to mention that Appeals No. 691 of 2023, 757 & 758 of 2022, 1015 of 2022 and 1079 of 2023 (four appeals) have been filed within the period of 30 days without certified copy of the impugned order but with an application for seeking exemption from filing certified copy of the impugned order. Appeals No. 1076 of 2022, 1085 of 2022, 964 & 965 of 2022, 1122 of 2022, 1143 of 2022 and 1174 of 2022 (six appeals) have been filed within the extended period of 15 days alongwith an application for condonation of delay and an application for seeking exemption from filing certified copy of the impugned order. Whereas Appeals No. 1135 of 2022, 1136 of 2022 and 270 of 2023 (three appeals) have either been filed within a period of 30 days or within the extended period of 15 days but all without any application for seeking exemption from filing certified copy of the impugned order in terms of Rule 14 of the Rules. 41. The objection raised by the Respondent in all these appeals is that since the certified copy has not been applied within a period of 30 days, therefore, the limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes a free copy of the order to be issued to every party. This obviates the need for any party to obtain a certified copy of the order it seeks to impugn by way of an appeal, therefore, the clock of limitation would run from the date of free copy is issued. It was also urged that Rule 22 of the NCLAT Rules mandates a certified copy of the order for filing an appeal but Rule 14 of the NCLAT Rules permits a waiver from compliance with any of the rules, which has been usually granted in case of a downloaded online copy, in lieu of a certified copy of the order. 46. On the other hand, submissions made by the Respondent noticed in the aforesaid judgment that Section 421(3) of the Act is not applicable to the proceedings under the Code and as per Rule 22 of the NCLAT Rules, the appeal has to be accompanied with a certified copy of the impugned order which was not filed by the Appellant. 47. In view of the aforesaid facts, two questions were framed by the Hon'ble Supreme Court, namely, (i)when will the clock for calculating the limitation period run for appeals filed under the Code and (ii) is the annexing of a certified copy mandatory for an appeal to NCLAT against an order passed unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanation is to assign the responsibility of applying for a certified copy of the order on a party. A person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the "time requisite" for obtaining a copy is to be excluded. However, the time taken by the court to prepare the decree or order before an application for a copy is made cannot be excluded. If no application for a certified copy has been made, no exclusion can ensue. In fact, the explanation to the provision is a clear indicator of the legal position that the time which is taken by the court to prepare the decree or order cannot be excluded before the application to obtain a copy is made. It cannot be said that the right to receive a free copy under Section 420(3) of the Companies Act obviated the obligation on the appellant to seek a certified copy through an application. The appellant has urged that Rule 14 of the NCLAT Rules empowers the NCLAT to exempt parties from compliance with the requirement of any of the rules in the interests of substantial justice, which has been typically exercised in favour of allowing a downloaded copy in lieu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules. In the event the appellant was correct in his assertion that a correct copy of the order was not available until 20 March 2020, the appellant would not have received a certified copy in spite of the application till such date and accordingly received the benefit of the suo motu order of this Court which came into effect on 15 March 2020. However, in the absence of an application for a certified copy, the appeal was barred by limitation much prior to the suo motu direction of this court, even after factoring in a permissible fifteen days of condonation under Section 61(2). The Court is not empowered to condone delays beyond statutory prescriptions in special statutes containing a provision for limitation. 33. The answer to the two issues set out in Section C of the judgement- (i) when will the clock for calculating the limitation period run for proceedings under the IBC; and (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 consc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cond judgment, relied upon by the Counsel for the RP in the case of Sanket Kumar Agarwal & Anr. (Supra) is concerned, the facts of this case are that the application filed under Section 7 of the Code by the Appellant was dismissed by the Adjudicating Authority on 26.08.2022. The Appellant filed the application on 02.09.2022 for obtaining the certified copy of the order dated 26.08.2022. The application was received by the registry on 05.09.2022. It uploaded the order on the website on 15.09.2022 and provided the certified copy to the Appellant on the same date i.e. 15.09.2022. the Appellant filed the appeal on 10.10.2022 through e-filing with an application for seeking condonation of delay of five days. A physical copy of the appeal was filed on 31.10.2022. In the said case, the Appellant submitted that the appeal had been filed within the period of limitation when the order was made available in the public domain i.e. 15.09.2022 but still he considered 26.08.2022 as the date from which the limitation would commence. It was stated that the prescribed period of 30 days for filing the appeal ended on 05.10.2022 after accounting for the exclusion of 10 days from 05.09.2022 to 15.09.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f clarity in regard to the period with reference to which limitation would commence. Hence, the order purported to state that the period of limitation shall be computed from the date of the presentation of an appeal under Rule 22. Significantly, the above order was to be effective from 1 November 2022. In the present case, admittedly, the appeal was e-filed on 10 October 2022 and even a physical copy was lodged on 31 October 2022 prior to the date on which the order of the Registrar dated 21 October 2022 was to come into effect. The order dated 21 October 2022 was subsequently withdrawn on 24 December 2022. The order dated 24 December 2022 now clarifies that limitation would be computed with effect from the date of e-filing but a physical copy would have to be filed within seven days of e-filing. 24. In the present case, the order was pronounced by the NCLT on 26 August 2022. Rule 3 of the NCLAT Rules 2016 stipulates that the date from which the period of limitation has to be reckoned (i.e., the date of the pronouncement of the order) would have to be excluded. Hence, the date on which the order was pronounced by the NCLT, namely 26 August 2022 would have to be excluded from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the RP is in the case of Jindal Power Limited (Supra). 56. The facts of this case are that the impugned order was pronounced on 02.08.2022 and the appeal was filed on 19.09.2022. From 02.08.2022, 30 days period came to an end on 01.09.2022 and further 15 days period also came to an end on 16.09.2022 and since the appeal was filed on 19.09.2022, therefore, it was on the 48th day. 57. In this case, the certified copy was applied on 15.09.2022 which was delivered on 19.09.2022, therefore, argument was raised that the period consumed during obtaining certified copy need to be excluded. This submission was made because the certified copy was applied on 15.09.2022i.e. one day before 45th day and the copy was delivered on 19.09.2022 and according to the Appellant it would have come within the condonable period and not beyond the period of 45days, however, it has been held that "the benefit of requisite for filing certified copy can be claimed by an applicant only when certified copy is applied before the expiry of the period of limitation". Thus, in this case, the Appellant was trying to take advantage of Section 12(2) of the Act, 1963. 58. In the case of Gaurav Agarwal (Supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-filing (ix) In order to take advantage of Section 12(2) of the Act 1963, certified copy has to be applied during the currency of the period prescribed for filing an appeal. 60. In our humble opinion, in none of the aforesaid judgments, the issue raised in these appeals that if the certified copy is not applied within 30 days then the limitation would expire, has been questioned and as such there is no decision on it. 61. Counsel for the Appellant has relied upon a decision of the Hon'ble Supreme Court in the case of Sambhaji and Ors. (Supra) in which it has been held that 'processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. A Procedural prescription is the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice'. Similarly, the Hon'ble Supreme Court in the case of Collector Land Acquisition, Anantnag & Anr. (Supra) has laid down the following parameters for the condonation of delay in filing the appeal which are reproduced as under:- "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for the compliance of the Rules though on a sufficient cause shown in an appropriate application filed by the Appellant. Similarly, six appeals have been filed beyond the period of 30 days but within 45 days and the application for condonation of delay has not yet been decided. Supposing, the application for condonation of delay is allowed then the appeals shall be deemed to have been filed within the period of limitation and if the application is dismissed then the matter would be over. In so far as the remaining three appeals are concerned, these appeals have been filed without any application for seeking exemption from filing certified copy of the impugned order whereas Rule 14 clearly lays down that exemption can be granted if an application is moved in that behalf and by assigning a sufficient cause to render substantial justice. 65. We have gone through the applications filed for seeking exemption i.e. I.A. No. 2302 of 2023 in CA (AT) (Ins) No. 691 of 2023, I.A. No. 3160 of 2022 in CA (AT) (Ins) No. 1076 of 2022, I.A. No. 3199 of 2022 in CA (AT) (Ins) No. 1085 of 2022, I.A. No. 2082-2083 in CA (AT) (Ins) No. 757&758 of 2022, I.A No. 2751-2752 of 2022 in CA (AT) (Ins) No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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