9911796707
TMI Blog2024 (3) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporate Debtor. Also that, the Adjudicating Authority, had appointed the 1st Respondent / Liquidator as Liquidator, through an Order dated 13.03.2020. The 1st Respondent / Petitioner / Liquidator, had informed the 3rd Respondent / Phoenix ARC Private Limited, through letter dated 26.08.2020, their respective Share of Liquidation Costs of Rs.36,74,771/-, (which includes, the approved Liquidation Costs and Liquidator Fee) and requested to remit their respective Share as a whole or at least 30% within 5 days, from the issuance of the Letter. In fact, the 1st Respondent / Petitioner / Liquidator, had provided the Liquidator s Fee Estimate, as per Letter dated 26.08.2020, as per Regulation 4(2)(b) of the Liquidation Process Regulations, 2016 - It is represented on behalf of the 1st Respondent / Petitioner / Liquidator that any delay, in depositing the Liquidation Costs by the Respondents, is delaying the Liquidation Process and the Liquidator, is unable to perform his duties, as mandated under the I B Code, 2016. Petition is filed in a Bona fide manner, and in the interest of Justice, the said Application, may be allowed by issuing necessary directions to the Respondents, to fort ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 / BB / 2020 in CP (IB) No. 189 / BB / 2018 (Filed by the Respondent No. 1 / Appellant ), under Section 9 of the I B Code, 2016, among other things, at Paragraph Nos. 12 to 16, had observed the following: 12. Moreover on perusal of the relationship note sent by the Respondent No.1 to Liquidator which is attached along with the rejoinder it is seen that Respondent No. 1 had invested up to Rs. 55 crores by subscribing to 5500 redeemable secured non-convertible debentures of Rs. 1,00,000/- each. Accordingly, respondent No. 1 falls within the purview of financial institution as mandated under section 45 (i) (c) (i) and 45 (I) (c) (ii) of Reserve Bank of India Act, 1934. 13. It is pertinent to point out that there has been no objection filed on behalf of respondent No. 2, and accordingly this Tribunal forfeited the right to file objection on 25.08.2022. Further, on perusal of the documents submitted by the Liquidator it is seen that respondent No. 2 vide email dated 17.04.2020 has informed that the charge over the properties of the Corporate Debtor will not be relinquished to the Liquidation Estate and it will proceed under the SARFAESI Act for the sale of properties of the Corporate D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e IBBI (Liquidation Process) Regulations, 2016. and disposed of the IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018 accordingly. Appellant s Submissions : 3. The Learned Counsel for the Appellant submits that the Appellant / 1st Respondent in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, on 25.05.2023 was called upon to contribute their portion of Liquidation Process Costs , when such costs are neither due nor payable from the Appellant as the Appellant has chosen to opt out of the Liquidation Process , to realise its Security Interest . 4. According to the Appellant, it is representing Debenture Holders , who are Secured Financial Creditors , and neither the Appellant nor the Debenture Holders , are Financial Institutions , and as per Regulation 2A of the IBBI (Liquidation Process) Regulations, 2016, the Appellant , cannot be called upon to pay these Liquidation Costs , let alone to pay these costs upfront . 5. The Learned Counsel for the Appellant contends that the Appellant , is not a Financial Creditor, who is a Financial Institution , as defined under Section 3(14) of the I B Code, 2016, and Section 45-I of the Reserve Bank of India Act, 1934 and that neither th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 for Liquidation of the Corporate Debtor and the 1st Respondent , was appointed as the Liquidator . As a matter of fact, the Appellant has while being on the Committee of Creditors , contributed various Sums (to the tune of approximately INR Rs. 18 Lakhs), towards CIRP costs , but till date, not received its Share of Reimbursement of those costs. 10. It is projected on the side of the Appellant that the 1st Respondent, after being appointed as Liquidator , by this Tribunal , through an Order , dated 13.03.2020, issued Public Announcement in Form B of Schedule II of the Liquidation Process Regulations, calling for submission of the Claims , on or before 17.04.2020. The Appellant, acting on behalf of the Debenture Holders , filed its Claim , dated 17.04.2020, in Form D of Schedule II, wherein the Appellant , has specifically mentioned that it is not relinquishing its Security Interest , and that it chose to stand outside the Liquidation Estate , and realise its Security Interest , in the Assets of the Corporate Debtor , on its own, as mentioned in Section 52 of the Code. After the receipt of various Claim Forms , the 1st Respondent / Liquidator , has complied with the Consolidated L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e whole process, undertaken by the Appellant for taking possession of selling and disposing off the Securities , exclusively created in their favour. 15. According to the Appellant, it preferred an Application, in IA No. 178 / 2022, seeking appropriate directions against the Liquidator, under Section 52(5) of the I B Code, 2016, which is still pending adjudication. Since, the Liquidator had acted in complete breach of fiduciary obligations to the Corporate Debtor and had failed to protect the interests of the Corporate Debtor , and its Creditors . 16. The Appellant had filed an Interlocutory Application, seeking replacement of Liquidator of the Corporate Debtor , and an Application , seeking replacement of the Liquidator of the Corporate Debtor and removal of 1st Respondent / Liquidator , and the said Application is numbered as IA No. 472 / 2022, before the Adjudicating Authority / Tribunal , and is still pending adjudication. 17. The Learned Counsel for the Appellant points out that in view of the Prayer, as formulated by the Liquidator himself in IA No. 399 / BB / 2020, the subsequent arguments relating to the applicability of Regulation 21A of the IBBI (Liquidation Process), Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Functions Relevant Annexures Essel Finance Advisors and Managers LLP Limited Liability Partnership under the LLP Act, 2008 Scheme Sponsor and Investment Manager for India Asset Growth Fund and India Asset Growth Fund II, undertaking fund management activities and investments in funds on behalf of persons/entities whose funds it manages. Claim Form Annexure G (Pg 121) Relationship Note Annexure U (Pg 30 of rejoinder) India Asset Growth Fund Alternative Investment Fund registered by SEBI Category-II Alternative Investment Fund registered with SEBI and regulated by SEBI AIF Regulations, primarily investing in senior, secured, unrated, unlisted and redeemable non-convertible debenture instruments. Certificate of Registration Annexure-K (Pg 185) Relationship Note Annexure U (Pg 30 of rejoinder) India Asset Growth Fund II Alternative Investment Fund registered by SEBI Category-II Alternative Investment Fund registered with SEBI and regulated by SEBI AIF Regulations, primarily investing in senior, secured, unrated, unlisted and redeemable non-convertible debenture instruments. Certificate of Registration Annexure-L (Pg 185) Relationship Note Annexure U (Pg 30 of rejoinder) Eduskill R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Clauses 8 10 of the Ancillary Objects of the MOA , as pointed out by the Learned Counsel for the Liquidator , does not aid their arguments, since Clause 8 is relatable to the business , which the Company is authorized to carry on , and Clause 10 pertains to Issue of Debentures , by the Company , and not the Subscription of Debentures . 26. The Learned Counsel for the Appellant points out that neither the Appellant nor the Debenture Holders , it acts on behalf of the fall within the definition of Non-banking Institution, under Section 45-I(e) of the RBI Act and hence, not liable to contribute towards Liquidation Costs . 27. The Learned Counsel for the Appellant points out that the Committee of Creditors , in their 12th Meeting , that took place on 13.02.2020 has explicitly stated that Liquidation Costs , are to be met by the Financial Creditors , being Financial Institutions , as per Regulations 2A of the Liquidation Process Regulations . 28. According to the Appellant, the 1st Respondent / Liquidator, through a Letter dated 07.04.2020, has accepted that the Appellant, is not a Financial Creditor , who is a Financial Institution , is therefore, not liable to pay the Liquidati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant, while summing up, prays for allowing of the instant Appeal , by setting aside the Impugned Order , dated 25.05.2023 in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, passed by the Adjudicating Authority , National Company Law Tribunal , Bengaluru Bench. 1st Respondent / Liquidator s Contentions: 34. The Learned Counsel for the 1st Respondent / Liquidator submits that the Adjudicating Authority / Tribunal , while passing the Impugned Order , in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, had adhered to the provisions of the I B Code, 2016, and the Liquidation Regulations, by taking into consideration the Order of this Tribunal , dated 16.03.2022, in State Bank of India V. Navjit Singh (vide Comp. App (AT) (INS) 151 of 2022), wherein at Paragraph 6, it is observed as under : 6. We have considered the submissions of Learned Counsel for the parties and perused the record. In so far as the claim of the Appellant is concerned of Rs. 29,34,54,879.59/- it has been admitted by the Liquidator the said claim is the claim admitted in the Liquidation Process and no further adjudication was called for with regard to the said claim. In the present case, the admissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the previous approval of the Central Government and by notification in the Official Gazette, specify. 37. According to the 1st Respondent, the Appellant has filed a Claim on behalf of the Eduskill Realtors LLP, which is a Limited Liability Partnership as well as Elegant Marbles and Granite Industries which is a Private Limited and hence, the question of them being non-banking financial institution will not arise. Further, the Learned Counsel for the 1st Respondent / Liquidator proceeds to point out that the Appellant was the Member of the Committee of Creditors of the Corporate Debtor , on the basis of Investment made of Rs.55 Crores, by subscribing 5500 Redeemable Secured Non-Convertible Debentures of Rs.1,00,000 and had 79.82% Share of Financial Institutions, for funding the estimated Liquidation Costs . 38. The Learned Counsel for the 1st Respondent submits that in terms of regulation 21A of the IBBI (Liquidation Process) Regulations, 2016, Secured Creditors , who do not relinquish their Security Interest , in the Liquidation Estate , is mandated to pay the amount, as payable under Clause (a) and sub-clause (i) of clause (b) of sub-section (1) of Section 53 of the Code, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y thrice in the course of liquidation to seek necessary directions qua the Appellant. We also find that such difficulties being faced by the liquidator were being brought to the knowledge of the Stakeholders' Consultation Committee and necessary directions for further actions were being obtained by the liquidator. . 21. It thus becomes quite clear that compliance of regulations 2(ea), 2-A, 21-A and 37 of the Liquidation Process Regulations and Section 52/53 of the IBC are absolutely necessary even if the secured creditor proceeds to realise its security interest. 42. The Learned Counsel for the 1st Respondent / Liquidator, adverts to the decision in DBS Bank India Limited v. Kuldeep Verma, Liquidator of Eastern Gases Limited, vide Comp. App (AT) (INS) No. 1048 of 2022, wherein, at Paragraph No. 2, it is observed as under: 2. Brief facts of the case necessary to be noted for deciding this Appeal are:- (iii) The Appellant informed the Liquidator on 08.04.2019 about its decision to realize its security interest as per Section 52 (i)(b) of the Code in respect of long term loan by remaining outside the liquidation process to realize its debts. Liquidator agreed to hand over possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as rightly passed the order allowing application filed by the Liquidator to hand over the additional amount to the Liquidator. Learned Counsel for the Appellant submits that out of Rs. 1.84 Crores, amount of Rs. 20 Lakhs have already been paid. 43. The Learned Counsel for the 1st Respondent / Liquidator contends that the instant Appeal , is filed without applying for the Certified Copy of the Impugned Order , and no explanation is given on behalf of the Appellant. In this regard, the Learned Counsel for the 1st Respondent, refers to the Judgment dated 22.10.2021 of the Hon ble Supreme Court (vide Civil Appeal No. 3327 / 2020) in the matter of V. Nagarajan v. SKS Ispat and Power Limited Ors., wherein it is held that the Aggrieved Party , is expected to exercise due diligence and apply for a Certified Copy , upon Pronouncement of the Order , it seeks to assail and the relevant Paragraph 21 of the aforesaid Judgment, reads as under : 21. .. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel for the 1st Respondent / Liquidator, while winding up, submits that the Impugned Order , dated 25.05.2023, in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, passed by the Adjudicating Authority / NCLT , Bengaluru Bench, in observing that the Respondent Nos. 1, 2 3 , have to defray their portion of Liquidation Process Costs , in terms of Regulation 2A of the IBBI (Liquidation Process) Regulations, 2016, is free from any legal infirmities. Evaluation : 46. Before the Adjudicating Authority / NCLT , Bengaluru Bench, the 1st Respondent / Liquidator / Petitioner , had filed IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018 (under Regulation 2A, read with Regulation 4, 21A (2) of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, and read with Rule 11 of NCLT Rules, 2016, praying for issuance of appropriate directions , to the Respondents, to forthwith defray their portion of Liquidation Process costs, in terms of Regulation 2A of the IBBI (Liquidation Process) Regulations, 2016, as already approved in the 12th Meeting of the Committee of Creditors and the Liquidator Fee , in terms of the provisions of the I B Code, 2016, and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y / Tribunal , in the 12th Meeting of the Committee of Creditors , convened on 13.02.2020, the Committee of Creditors , had approved a sum of Rs.98,77,020/- (for twelve months), to be contributed to the Liquidation Cost Account and the following are details : Resolution For Approval of Liquidation Costs RESOLVED THAT Regulation 2A of IBBI (Liquidation Process) Regulations, 2016, it is hereby approved to contribute the excess of the liquidation costs over the liquid assets of the corporate debtor, as estimated by the liquidator, in proportion to the financial debts owed to the lenders by the Corporate Debtor and the contributions shall be deposited in a designated escrow account to be opened and maintained in a scheduled bank, within seven days of the passing of the liquidation order as given below : Particulars Amount (INR) Liquidator Support Team As per Fee agreed at CoC / Regulation Legal Counsel Fees 19,11,600 MCA filing fees professional charges (Liquidation status and FY 19, FY 20 financials) 1,02,900 Auditor Fees Receipts and Payments account 70,800 OPE for Liquidator and team 12,00,000 Statutory Audit Fees for FY 20 8,26,000 Website Charges and Maintenance 1,80,000 Public An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... institution. 56. Continuing further, according to the 1st Respondent / Liquidator, the Financial Institution , is defined as per Section 45-I of the RBI Act, 1934, which reads as under: (c) financial institution means any non-banking institution which carries on as its business or part of its business any of the following activities, namely:-- (i) the financing, whether by way of making loans or advances or otherwise, of any activity other than its own; (ii) the acquisition of shares, stock, bonds, debentures or securities issued by a Government or local authority or other marketable securities of a like nature; (iii) letting or delivering of any goods to a hirer under a hire-purchase agreement as defined in clause (c) of section 2 of the Hire-Purchase Act, 1972. (iv) the carrying on of any class of insurance business; (v) managing, conducting or supervising, as foreman, agent or in any other capacity, of chits or kuries as defined in any law which is for the time being in force in any State, or any business, which is similar thereto; (vi) collecting, for any purpose or under any scheme or arrangement by whatever name called, monies in lump sum or otherwise, by way of subscription ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... informed the 1st Respondent / Petitioner that any excess proceeds , from the Property of the Corporate Debtor , will be paid to the Petitioner / 1st Respondent and the Relinquishment Letter , will be provided, after the Lock Down , is lifted. 62. The 1st Respondent / Petitioner had informed the 2nd Respondent / India Bulls Asset Reconstruction Company Limited, through an email dated 21.04.2020 that as per Regulation 21A (2) of the Liquidation Process Regulations, 2016, the 2nd Respondent / India Bulls Asset Reconstruction Company Limited, has to pay the Liquidation Costs , as approved during the CIRP , by the Committee of Creditors . 63. Besides this, the 1st Respondent / Petitioner, through an email , dated 03.06.2020. had again informed the 2nd Respondent / India Bulls Asset Reconstruction Company Limited, to send a communication for opting out of the Liquidation Process of the Corporate Debtor and further informed, that the permission for opting out of the Liquidation Process , will only be granted, after the due fulfilment of the requirements, under the I B Code 2016 and Regulations, thereunder. In fact, the 1st Respondent / Petitioner / Liquidator, had again requested the 2nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent, and their respective Share of Liquidation Costs of Rs.1,91,96,224/- (Rupees One Crore Ninety One Lakhs Ninety Six Thousand Two Hundred and Twenty Four Only), which includes the approved Liquidation Costs and Liquidation Fee) and further requested to remit their respective Share, as a whole or at least 30% within 5 days from the issuance of the Letter. 69. In reality, the 1st Respondent, through a letter dated 26.08.2020, had provided the Liquidator s Fee Estimate, as per Regulation 4(2)(b) of the Liquidation Process Regulations, 2016, which runs as follows : Amount of Realization 7 to 12 Months 145.00 From To Net Fees On the first 1 crore 3.75 - 1.00 1.00 0.04 On the next 9 crores 2.80 1.00 9.00 8.00 0.22 On the next 40 crores 1.88 10.00 40.00 30.00 0.56 On the next 50 crores 0.94 40.00 50.00 10.00 0.09 On further sums realized 0.19 50.00 145.00 95.00 0.18 Sub-total 1.10 Amount Distributed to Stakeholders 7 to 12 months 145.00 From To Net Fees On the first 1 crore 1.88 - 1.00 1.00 0.02 On the next 9 crores 1.40 1.00 9.00 8.00 0.11 On the next 40 crores 0.94 10.00 40.00 30.00 0.28 On the next 50 crores 0.48 40.00 50.00 10.00 0.05 On further sums realized 0.10 50.00 145.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the I B Code, 2016 and Regulations, made thereunder, which as per Regulation 2A(2), are required to be deposited within 7 days from the commencement of the Liquidation Process . 75. It is represented on behalf of the 1st Respondent / Petitioner / Liquidator that any delay , in depositing the Liquidation Costs by the Respondents , is delaying the Liquidation Process and the Liquidator , is unable to perform his duties, as mandated under the I B Code, 2016. 76. Also that, because of the inaction of the Respondents , by not defraying their portion of Liquidation Process Costs , which were duly approved in the 12th Meeting of Committee of Creditors , is creating hurdle in the Liquidation Process of the Corporate Debtor and hindering the 1st Respondent / Petitioner / Liquidator, to discharge his duties, as per the I B Code, 2016. 77. Hence, the IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018 is filed in a Bona fide manner, and in the interest of Justice , the said Application, may be allowed by issuing necessary directions to the Respondents, to forthwith defray the portion of Liquidation Process costs , as per Regulation 2A of the IBBI (Liquidation Process) Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to contribute to the Liquidation Costs . 83. The submission of the Appellant / 1st Respondent in the instant Appeal , before this Tribunal is that the main object and nature of the business of Eduskill Realtors LLP and Elegant Marbles and Granites Industries Limited , will establish that the Business Activities , carried out by the Debenture Holders , do not fall within the nature of the business activities, covered as per Section 45-I of the Reserve Bank of India Act, 1934. 84. According to the Appellant / 1st Respondent, since it is a Limited Liability Partnership , it does not fall within the ambit of Non-Banking Institution , as mentioned in Section 45-I of the RBI Act, 1934. Also that, the Appellant / 1st Respondent, had clarified that it is not a Financial Creditor , who are Financial Institution and therefore, are not liable to contribute any sums , towards Liquidation Costs . 85. The prime contention advanced on behalf of the Appellant / 1st Respondent is that on 13.02.2020, the Committee of Creditors , in their 12th Meeting, had explicitly stated that Liquidation Costs , are to be met by the Financial Creditors , being Financial Institution , as per Regulation 2A of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Impugned Order dated 25.05.2023 in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, had dealt with the main contention raised by the Appellant / 1st Respondent that it does not fall within the category of Financial Institution , mentioned about the relationship note, sent by the Appellant / 1st Respondent to the 1st Respondent / Liquidator / Petitioner, which was attached along with the Rejoinder , etc., and also pointed out that there was no objection filed on behalf of the 2nd Respondent and that the Adjudicating Authority / Tribunal , had forfeited the right to file objection on 25.08.2022. Moreover, the Adjudicating Authority / Tribunal , in Paragraph 13 of the Impugned Order , had observed that further, on perusal of the documents submitted by the Liquidator it is seen that Respondent No. 2 vide email dated 17.04.2020 has informed that the charge over the properties of the Corporate Debtor will not be relinquished to the Liquidation Estate and it will proceed under the SARFAESI Act for the sale of properties of the Corporate Debtor. Further, vide email dated 18.06.2020 Respondent No. 2 gave assurance to the Liquidator to pay the Liquidation Process costs of the Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as Elegant Marbles Granite Industries Limited and therefore, they being a Non-Banking Financial Institution , may not arise , in this considered opinion of this Tribunal . 95. The Appellant / 1st Respondent / Essel Finance Advisors Managers LLP, had invested upto Rs.55 Crores by subscribing to 5500 Redeemable Secured Non-Convertible Debentures of Rs. 1 Lakh each and therefore, the Appellant / 1st Respondent , comes within the ambit of Financial Institution , as per Section 45(i)(c)(i) and 45(I)(c)(ii) of Reserve Bank of India Act, 1934. 96. It must be borne in mind when a Secured Creditor , exercise its right as per Section 52 of the I B Code, 2016, there is no provision in the I B Code, 2016 or Regulation, which provides for extension of time , to pay the Liquidation Costs . Also that, it is quite clear from the Regulation 21A of the Liquidation Process Regulations, 2016, that the Secured Creditors , who do not relinquish their Security Interest , in the Liquidation Estate is required to pay the Sum as payable under clause (a) and sub-clause (i) of clause (b) of sub-section (1) of Section 53 of the Code, which includes the Appellant . 97. In the present case, even though the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 100. The Learned Counsel for the 1st Respondent / Liquidator / Petitioner, adverts to the Paragraph 19 of the Judgment of Hon ble Supreme Court in the aforesaid V. Nagarajan s case, wherein, it is observed as under : 19. .The import of Section 12 of the Limitation Act and its explanation 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 fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Registry , shall send the Certified Copy of Final Order , passed to the Parties concerned Free of Cost and the Certified Copies , may be made available with costs, as per Schedule of Fees , in all other cases. 104. In the decision of Hon ble Supreme Court of India in State of Uttar Pradesh v. Maharaj Narain, reported in AIR 1968 SC at Page 960, it is held that the time requisite , for obtaining a copy is to be ascertained from the copy actually filed along with the Memorandum . 105. It is worth for this Tribunal , to make a useful reference to the decision of the Hon ble Supreme Court of India, in Lala Balmukund V. Lajwanti, reported in AIR 1975 SC 1089, wherein, it is observed as under: In our opinion, the expression time requisite as used in s. 12(2) in the phrase in question, means all the time counted from date of the pronouncement of the judgment (the same being under Or. 20, r. 7, CPC, the date of the decree) which would be properly required for getting a copy of the decree, including the time which must ex-necessitate elapse in the circumstances of the particular case, before a decree is drawn up and signed. If any period of the delay in preparing the decree was attribut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to make a pertinent mention that in the decision of the Hon ble Supreme Court of India in Sagufa Ahmed v. Upper Assam Plywood Products (P) Limited, reported in (2021), 2 SCC at Page 317, it is clarified that the Statutory Mandate of a Free Copy , is not to enable litigants to take two bites at the apple, where they could compute limitation from either when the Certified Copy , is received on the litigant s Application or received as a Free Copy , from the Registry whichever is later . 111. Also that, it cannot be overlooked that the obligation of the Appellants / Petitioners, to obtain a Certified Copy of the Impugned Order , through an Application , and to annexe the same with the Appeal is a mandatory one, in terms of Rule 22(2) of the NCLAT Rules, 2016, in the considered opinion of this Tribunal . 112. Earlier, the Petitioners / Appellants in IA No. 1007 of 2023 in Comp. App (AT) (CH) (INS) No. 332 of 2023, sought to condone the purported delay of 11 days (according to them), but, according to the Office of the Registry , the delay comes to 14 days and this Tribunal , had allowed the IA No. 1007 / 2023 on 24.01.2024, by directing the Appellants , to pay a Costs of Rs.3,000/-, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t time requisite for obtaining the copy of the Order , appealed shall be excluded, does not arise on any score. 119. The fact of the matter is, that in respect of the Appellants / Petitioners , since no Application for securing a Certified Copy of the Impugned Order was made, on their behalf, no exclusion of time requisite , as per Section 12 of the Limitation Act, 1963, will ensue in their favour, as opined by this Tribunal , in a clear cut manner. 120. Considering the fact that the Appellants , have averred in Paragraph 6 of the Memorandum of Appeal , under the caption Limitation that a copy of the Order , was accessed by them and made available to their knowledge on the Official Website of the Adjudicating Authority / Tribunal , on 29.05.2023, and the instant Appeal , came to be filed on 08.07.2023 and the delay of purported 11 days (according to the Appellants / Petitioners ) and according to the Registry , it is 14 days, being condoned in IA No. 1007 / 2023 in the instant Appeal , on 24.01.2024, it is held by this Tribunal that the filing of the Certified Copy of the Impugned Order , is to accompany the instant Appeal , mandatorily (unless an Exemption Application , being file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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