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TMI Blog2024 (3) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... points out that as per Rule 50(2) of the National Company Law Rules, 2016, the 'Registry' of the 'Adjudicating Authority/Tribunal' shall send a Free of Cost Certified Copy of the Final Order to the parties to the 'lis'. Also, that the 'Certified copy' could be obtained by the 'parties' against the payment of cost as per 'Schedule of Fees'. 3. In this connection, the Learned Counsel for the 'Petitioner/Appellant' adverts to Rule 150 of the National Company Law Tribunal Rules, 2016 which stipulates the manner in which the 'orders' must be pronounced by the 'Adjudicating Authority/Tribunal'. 4. According to the Learned Counsel for the 'Petitioner/Appellant' that in terms of Rule 150(2) of the National Company Law Tribunal Rules, 2016 "Every order of the Tribunal shall be in writing and shall be signed and dated by the President or Member or Members constituting the Bench which heard the case and pronounced the order." 5. Furthermore, in terms of Rule 150 (3) of the National Company Law Tribunal Rules, 2016, 'A certified copy of every 'order' passed by the 'Tribunal' shall be given to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was unable to examine the papers and 'Memorandum of Appeal' and approve the same, upon seeking appropriate legal advice. Besides these, 'Certificate' issued by the registered 'Medical Practitioner', certifying the Petitioner's 'illness' and 'indisposition', is produced, before this 'Tribunal', 'during the course of argument'. 10. The Learned Counsel for the 'Petitioner/Appellant' points out that she is the 'Resident of Tenali', Guntur, Andhra Pradesh, and therefore, not in the immediate vicinity of either the 'Adjudicating Authority/Tribunal', Amaravati Bench or this 'Appellate Tribunal' and hence she requires 'time', to "compile and collect" the 'case papers', and bring them to her legal counsel in Chennai, so as to prepare the instant 'Appeal', and file the same. Therefore, the 'delay in filing the present Appeal', is neither wilful nor wanton and that the 'Condone Delay Application' in IA No.83/2024 in Comp. App. (AT)(CH)(Ins) No.23/2024 is filed in 'bona fide manner' without concealing anything, before this 'Appellate Tribunal'. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;Appeal' before this 'Tribunal', the 'free copy' of the 'Impugned Order', which is also certified by the 'Officer of the Tribunal', would suffice, for the 'Petitioner/Appellant', to prefer an 'Appeal', as per Rule 22 of the National Company Law Appellate Tribunal Rules, 2016. 16. Contending contra, the Learned Counsel for the 'Petitioner/Appellant', points out that the matters were listed for 'orders' as item No.1 on 24.11.2022 before the 'Adjudicating Authority/Tribunal' and that the 'Adjudicating Authority/Tribunal' was pleased to dismiss both the main IA(IBC)/102/2022 in C.P.(IB) No.45/7AMR/2020 on merits through the 'Impugned Order' and in short, the 'Petitioner/Appellant' and her Learned Counsel's were duly aware about the 'Pronouncement of Orders' on 24.11.2022. 17. The Learned Counsel for the 'Respondent' comes out with a plea that the 'Petitioner/Appellant', has failed to apply for a 'Certified Copy of the 'Impugned Order' dated 24.11.2022 passed by the 'Adjudicating Authority/Tribunal' and hence, the 'Petitioner/Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computation of limitation but also an indication of the diligence of the aggrieved party in pursuing the litigation in a timely fashion. In a similar factual scenario, NCLAT had dismissed an appeal "Prowess International (P) Ltd. v. Action Ispat & Power (P) Ltd. Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801 ("suo motu order") as time-barred under Section 61(2) IBC since the appellant therein was present in court, and yet chose to file for a certified copy after five months of the pronouncement of the order. 32. The appellant had argued that the order of NCLAT notes that NCLT Registry had objected to the appeal in regard to limitation, to which the appellant had filed a reply stating that the limitation period would begin from the date of the uploading of the order, which was 12-3-2020. The appellant submitted that the suo motu order of this Court dated 23-3-2020, "Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801 ("suo motu order") taking retrospective effect from 15-3- 2020, made under Article 142 of the Constitution, extended the limitation until further orders, which renders the appeal filed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not applied for a 'Certified Copy' of the 'Impugned Order', dated 24.11.2022 and only, is placing reliance upon the 'Free of Cost' 'Certified Copy', and therefore, is incorrect, in computing the 'period of limitation', from the date on which the 'Free of Cost Copy' was received. 20. The Learned Counsel for the 'Respondent', takes an emphatic plea that the delay as mentioned in the 'condone delay application' in IA/83/2024 in Comp. App. (AT) (CH) (Ins) No.23 of 2024 by the 'Petitioner' as 12 days is not a correct one and in reality, there has occasioned a 'Delay of 26 days', i.e. 'beyond the period of 30 days', prescribed under Section 61 of the Insolvency and Bankruptcy Code, 2016. Therefore, this 'Tribunal' as per Section 61(2) of the IBC, 2016 is not empowered to condone the delay, after the expiry of 30 days, from the date of 'Pronouncement of the order' and only a '15 days' is given to the 'Appellate Tribunal' to condone the delay [after the expiry of 30 days from the date of 'Pronouncement of the Order' by the Adjudicating Authority] but not exceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Section 61(2) of the Insolvency and Bankruptcy Code, 2016 and filed before this 'Tribunal', on 56th day viz.; on 19.02.2023, the same, is 'hopelessly barred by limitation' and that the instant 'Appeal' cannot be entertained by this 'Appellate Tribunal', considering the fact that the 'Limitation' for preferring the 'Appeal' of the 'Petitioner/Appellant' was within 08.01.2023, in terms of Section 61(2) of the IBC, 2016. 24. Admittedly, in the instant case, the 'Petitioner/Appellant', had not applied for a 'Certified Copy' as per Section 76 of the Indian Evidence Act, 1872, contemplated under Rule 2(9)of the National Company Law Tribunal Rules, 2016, and has not obtained the 'certified copy', on payment of, 'Requisite Fee', as per 'Rules'. Therefore, the 'Free Cost copy' of the 'Impugned Order' dated 24.11.2022 passed by the 'Adjudicating Authority/Tribunal' in CP (IB) No.45/7/AMR/2020, is not a 'Copy Certified', contemplated as per Rule 22 of the National Company Law Appellate Tribunal Rules, 2016. 25. The other fact which is to be noticed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic document is dependent on the right to inspect the document." 31. At this stage, this 'Tribunal', worth recalls and recollect the illuminating decision of the Hon'ble Supreme Court of India in National Spot Exchange Limited v Anil Kohli, Resolution Professional for Dunar Foods Limited (Resolution Professional) reported in (2022)11 SCC 761 at page 773 wherein at paragraph 14 it is observed as under: "It is true that in a given case there may arise a situation where the applicant/appellant may not be in a position to file the appeal even within a statutory period of limitation prescribed under the Act and even within the extended maximum period of appeal which could be condoned owing to genuineness viz. illness, accident, etc. However, under the statute, Parliament has not carved out any exception of such a situation. Therefore, in a given case, it may cause hardship, however, unless Parliament has carved out any exception by a provision of law, the period of limitation has to be given effect to. Such powers are only with Parliament and the legislature. The courts have no jurisdiction and/or authority to carve out any exception. If the courts carve out an exception, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 'order' was obtained against him and as a 'litigant'/'stakeholder' he/she is to pursue the 'further course of action', in the manner known to law and in accordance with law. 35. As far as the present case is concerned, the delay of 12 days has computed by the 'Petitioner/Appellant', in her 'Application', from the date of receipt of 'free copy' on 07.12.2022 cannot be accepted and as per Rule 150 of the National Company Law Tribunal Rules, 2016, the 'Pronouncement date' can only be the date on which the 'order' was pronounced on 24.11.2022 by the 'Adjudicating Authority/Tribunal'. If calculated from the date on which the instant 'Appeal' came to be filed through 'e-portal' on 19.01.2023, the actual delay comes (after the expiry of 30 days in preferring an 'Appeal') will be 26 days. In all there is a delay of 26 days which is 'beyond the condonable period of (30 + 15 = 45 days) being the outer limit', as provided under Section 61(2) of the Insolvency and Bankruptcy Code, 2016. 36. Taking note of the fact that in the 'Absence of any Interlocutory Application', ..... X X X X Extracts X X X X X X X X Extracts X X X X
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