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TMI Blog2024 (7) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... n from the Judgment of V. Nagarajan V. SKS Ispat [ 2021 (10) TMI 941 - SUPREME COURT (LB) ] where the Three Member Bench of this Tribunal, had answered the aforesaid question after dealing with the various Authorities that, in those cases where the Appellant before the NCLAT, has not applied for a Certified Copy, as prescribed under Section 76 of the Evidence Act, to be read with Rule 2 (9) of the NCLT Rules, after raising a demand and payment of the Requisite Fee, the Free Copy of the Impugned Order will not be treated as to be as good as a Certified Copy, contemplated under Rule 22 (2) to make the Appeal maintainable. Since, the necessity of filing of an Appeal, along with the Certified Copy and the distinction between the Free Copy and the Certified Copy , as to the basis for filing of an Appeal has already been decided, by the larger Bench of this Tribunal, in that eventuality and in the light of the Chandra Prakash Judgment, the reference is answered accordingly, since, the principle of Limitation has already been settled that the Appeal would lie on the basis of the Certified Copy of the Judgment, and not on the basis of Free Copy. Hence, the reference is answered accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the NCLAT Rules, 2016, sought a condonation of 3 days of delay which has chanced in filing the Appeal for the reason as ascribed in Para Nos. 4, 5 6 of the Application. 6. At this stage, when the Application itself was being considered, the question which came up for consideration before this Tribunal was, as to whether for the purposes of filing of an Appeal under Section 61 of the I B Code, 2016, which provides for preference of an Appeal, as per Rule 22 of the NCLAT Rules which contemplates that the Appeal has to be preferred, along with the Certified Copy of the Judgment under challenge. 7. Rule 22 of the NCLAT Rules, 2016, are extracted hereunder: 22. Presentation of appeal.- (1) Every appeal shall be presented in Form NCLAT-1 in triplicate by the appellant or petitioner or applicant or respondent, as the case may be, in person or by his duly authorised representative duly appointed in this behalf in the prescribed form with stipulated fee at the filing counter and non-compliance of this may constitute a valid ground to refuse to entertain the same. (2) Every appeal shall be accompanied by a certified copy of the impugned order. (3) All documents filed in the Appellate Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal, only based upon a Certified Copy , it goes without saying that it has to be read in harmony with Rule 22 (2) of NCLAT Rules, which has to read with Rule 2 (9) of the NCLT Rules, which has to be read in expansion to the provisions of Section 76 of the Indian Evidence Act. Rule 2(a) of NCLT Rules of 2016. 13. The question, is whether the Certified Copy , so prescribed for the purposes of preference of an Appeal, could be taken up as a substitute to the Certified Free Copy , provided under Rule 50 of the Rules to the parties concerned. Rule 50 of the NCLT Rules, 2016, is extracted hereunder: 50. Registry to send certified copy.- The Registry shall send a certified copy of final order passed to the parties concerned free of cost and the certified copies may be made available with cost as per Schedule of fees, in all other cases. 14. Rule 50 of the NCLT Rules, does not speak that its the provision which requires that there has to be a demand on payment of a fee. Rather, Rule 50 is an obligation which is casted on the Registry to send a `Final Order to the parties, `Free of Cost and rather, it further obligates that the `Certified Copy , may be made available with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure, as it may consider just and expedient on the application moved in this behalf to render substantial justice. of the NCLAT Rules empowers 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 of a certified copy. While it may well be true that waivers on filing an appeal with a certified copy are often granted for the purposes of judicial determination, they do not confer an automatic right on an applicant to dispense with compliance and render Rule 22(2) of the NCLAT Rules nugatory. The act of filing an application for a certified copy is not just a technical requirement for 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, the NCLAT had dismissed an appeal Prowess International (P) Ltd. V. Action Ispat Power (P) Ltd., 2018 SCC OnLine NCLAT 644 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, 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 Union of India v. Popular Construction Co., (2001) 8 SCC 470; Singh Enterprises v. CCE, (2008) 3 SCC 70; Chhattisgarh SEB v. CERC, (2010) 5 SCC 23; Bengal Chemists and Druggists Assn. v. Kalyan Chowdhury, (2018) 3 SCC 41 : (2018) 2 SCC (Civ) 30. 17. Ultimately, the conclusion which has been arrived at by the Larger Bench in the said Judgment, it has been held that for the purposes of filing of a Company Appeal, there has to be a Certified Copy, as per Section 76 of the Evidence Act and particularly the intention of the Legislature has already been dealt with in Para 32, 33 34 of the said Judgment (which is not been dealt with to avoid repetition). 18. Ultimately, what could be culled out from the Judgment of Three Judges Bench of the Hon ble Apex Court is that, for filing of an Appeal and owing to the implication of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyed under Rule 2(9) of the National Company Law Tribunal Rules, 2016, which provides for meaning for the word 'certified', in relation to a 'Copy of the Document' as mentioned therein. 34. Moreover, obtaining of 'Free of Cost Copy', is only the 'Concern of the particular party to the effect that 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. 21. So far, there is nothing before me has been projected by any of the arguing Counsel, that the Judgment of the NCLAT, as rendered in the matter of Munagala Roja Harsha Vardhini, had been disturbed or reversed, by the Hon ble Apex Court upon a challenge given to it. 22. The issue herein cropped up when in the matter of Comp. App (AT) (CH) (INS) No. 53 / 2024, State Bank of India v. India Power Corporation Limited, there was a difference of opinion between the Two Members of the Bench with regards to the aspect as to what would the Certified Copy mean for the purposes of Rule 22, to be read with Section 76 of the Indian Evidence Act. 23. One of the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iod of Limitation i.e. 30 days, they would not be able to derive the benefit of Limitation, as there was a dereliction and lack of diligence on part of the Appellant to procure a Certified Copy. Thus, in the light of Para 31 of the Judgment of V. Nagarajan Supra, when the Appellant had failed to satisfy the Tribunal, that there was an application for the Certified Copy, hence, no exclusion of Limitation could be granted and there cannot be an automatic exemption from filing of a Certified Copy, to sustain an Appeal and to derive the benefit of Limitation. 27. The Judgment of the Comp. App (AT) (CH) (INS) No. 53 / 2024, was deferred in opinion by the Hon ble Member (Technical) of the Bench by expressing a difference of opinion on 01.05.2024, wherein, the Hon ble Member (Technical) formulated the question in the following manner: (3) The Points of Determination in the case are the following: a. Will the copy provided by NCLT free of cost under Rule 50 of NCLT Rules for the parties qualify as a Certified Copy for the purpose of Rule 22(2) of NCLAT Rules, 2016? b. Will the period between 30.10.2023 (date of pronouncement of order) and 14.11.2023 (date of supply of free copy) be exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33. The Learned Member (Technical) has extracted the following part of Section 76, as under: such copies so certified shall be called Certified Copies 34. The extraction of the words from Section 76 as it has been determined by the Learned Member (Technical) contending thereof that the Certified Copy as mentioned in the principal body of Section 76 of Evidence Act, would be inclusive of the Certified Copy, which is given Free of Cost and further opined that such copies so Certified will be called as a Certified Copy which will include within itself, the Free Copy, itself is a misnomer for the reason being that the said portion of Section 76 of the Evidence Act, which has been extracted by the Learned Member (Technical), in fact, it is misplaced, because, the said part cannot be extracted to be read independently and in isolation to the principal provisions of Section 76 of the Evidence Act and the use of word so , would mean and relates to only the Certified Copy in correlation to the principal provisions of Section 76 of Evidence Act and the use of word so herein, will not mean the Free Copy, as provided under Rule 50 of the NCLT Rules, 2016, because this part of Section 76 of Evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rperson of `NCLAT Principal Bench , New Delhi, for constituting an appropriate Bench / nominating Hon ble Third Member, for rendering his opinion / decision, in the subject matter, in issue. 39. While hearing the reference, the Learned Counsels for the Parties were heard at length. 40. The Learned Counsel for the Respondent in support of the Judgment pertaining to the necessity of filing of a Certified Copy, as it has been contemplated under Rule 22 (2) of the NCLAT Rules, 2016, submitted that the Constitution Bench Judgment, as rendered by the Hon ble Apex Court in the matters of Chandra Prakash Ors. v. State of U.P. Ors., as reported in 2002 Vol. III SCC Page 533, wherein particularly, he has made a reference to Paras 19 to 24, which is extracted hereunder: 19. The principles of the doctrine of binding precedent are no more in doubt. This is reflected in a large number of cases decided by this Court. For the purpose of deciding the issue before us, we intend referring to the following two judgments of this Court. 20. In the case of Union of India v. Raghubir Singh (supra), a 5-Judge Bench of this Court speaking through Pathak, CJ., held that pronouncement of a law by a Division B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a Division Bench of five Judges, in preference to Bhut Nath Mete v. State of West Bengal, [1974] 1 SCC 645 decided by a Division Bench of two Judges. Again in Indira Nehru Gandhi v. Raj Narain, [1975] Supp. SCC 1, Beg J held that the Constitution Bench of five Judges was bound by the Constitution Bench of thirteen Judges in Kesavananda Bharati v. State of Kerala, [1973] 4 SCC 225]. In Ganapati Sitaram Balvalkar v. Woman Shripad Mage, [1981] 4 SCC 143, this Court expressly stated that the view taken on a point of law by a Division Bench of four Judges of this Court was binding on a Division Bench of three Judges of the Court. And in Mattulal v. Radhe Lal, [1974] 2 SCC 365, this Court specifically observed that where the view expressed by two different Division Benches of this Court could not be reconciled, the pronouncement of a Division Bench of a larger number of Judges had to be preferred over the decision of a Division Bench of a smaller number of Judges. This Court also laid down in Acharya Maharajshri Narandraprasadji Anandprasadji Maharaj v. State of Gujrat, [1975] 1 SCC 11 that even where the strength of two differing Division Benches consisted of the same number of Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the decisions of this Court. It is in the above context, this Court in the case of Raghubir Singh held that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or similar number of Judges. It is in furtherance of this enunciation of law, this Court in the latter judgment of Parija (supra) held that- But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified. ( Emphasis supplied ) 23. We are in respectful agreement with the enunciation of law made by this Court in the above noted judgments in Raghubir Singh and Parija (supra). 24. Applying the principles laid down in the abovesaid cases, we hold that the judgment of the 2-Judge Bench of this Court dated 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressed by yet another Constitution Bench Judgment in the matters of Parija s case, where it has been observed that the Bench of Two Judges, cannot doubt the correctness of the Judgment of the Bench of Three Judges and the re-consideration of it could only be possible in a situation, where a Five Judges Bench intended to upheld the Judicial Propriety and Judicial Discipline. In other words, it could be said that the principles thus declared its paramount intention was that the Law declared by the Court should be certain, clear and consistent, and now it is in the common knowledge, that most of the decisions of the Court rendered by a larger Bench will have a binding principle and particularly when the same Member (Technical), had already followed the Judgment of Munagala Roja Harsha Vardhini and later in another Judgment of M/s. Whitehand Services v. M/s. RD Buildtech Developers Karnataka Pvt. Ltd., under the guiding principles of the Constitution Bench, the Learned Single Judge, under the principles of Doctrine of Binding Precedent, ought to have followed the said principle which happens to be the utmost precedent and holding importance in the administration of Judicial System. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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