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TMI Blog2024 (8) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... days delay in re-filing of the appeal. The grounds taken in the application is that the local counsel in Kolkata has sent the copy of the order to the appellant, who is based at Mumbai. The documents are misplaced and some time was taken in searching it. Further, the counsel for the appellant who is situated in Delhi took some further time for verifying the facts and relevant documents were received by post which took considerable time. Certain additional documents were called for by the counsel for the appellant, hence, the re-filing was delayed. Cause shown sufficient. Re-filing delay is condoned. List this appeal on 06.02.2024." x x x "06.02.2024 Learned Counsel for the Appellant submits that the demand notice was issued on 12.02.2019 and after that the second notice was issued on 25.04.2019 reducing the amount which was already received from the Corporate Debtor and the suit filed by the Corporate Debtor on 06.04.2019 cannot be said to be raising a dispute. The Adjudicating Authority committed error in rejecting the application. Issue notice. Requisites along with process fee be filed within three days. Let Reply be filed by the Respondent within three weeks. Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel in support of the IAs contends that although the Appeal is claimed to be e-filed on 25.09.2023, but filing on 25.09.2023 cannot be accepted, since neither the impugned order nor the Vakalatnama was filed; no notarised affidavit was accompanied with the Appeal; the Appeal was not in the prescribed format. It is submitted that 30 days' time for filing of the Appeal expired on 27.09.2023 and defects were communicated on 04.10.2023, were substantial defects. It is submitted that extended period of 15 days also expired on 12.10.2023. Affidavit in support of the Appeal and the Applications affirmed for the first time and Vakalatnama was signed and executed on 15.12.2023. The Appeal being still defective, defects were point out by the Registry on 03.01.2024. The refiling of the Appeal was made on 16.01.2024, which should be treated as the date of filing of the Appeal, for the purpose of limitation and earlier filing of the Appeal, without proper materials, it was non est filing. It is submitted that refiling date 16.01.2024 is to be treated as the date of filing of the Appeal, which filing being much beyond the period of 45 days of the impugned order, the Appeal deserves to be dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was applicable to the filing in the Delhi High Court, is not applicable with regard to filing in the NCLAT. 7. We have heard learned Counsel for the parties and perused the record. 8. The case of the Applicant/ Respondent being that Caveat was filed on 13.09.2023, but copy of the Appeal was not served to the Counsel for the Applicant/ Respondent and it was served on one of the Directors of the Corporate Debtor, only on 03.01.2024. The Applicant/ Respondent in support of the filing of the Caveat has filed relevant materials along with the Application. However, in the Report of the Registry, which is on record, no Caveat has been noticed. 9. The Applicant/ Respondent has in paragraph 8 of the Application has stated on 03.01.2024, one of the Director of Respondent Shri Akshay Pasari, by email, received a copy of the Appeal, which was also a defective Appeal. Looking to the above facts, we have permitted the Counsel for the Respondent to address submissions on all points, including the point of Appeal being barred by time and the filing of Appeal on 25.09.2023 was non est and not confining only to the ground of recall as recognized. We, thus, proceed to examine the submissions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be filled along with memorandum of appeal." 12. Rule 26 provides for "endorsement and scrutiny of petition or appeal or document", which is as follows: "26. Endorsement and scrutiny of petition or appeal or document.-(1) The person in charge of the filing-counter shall immediately on receipt of appeal or document affix the date and stamp of the Appellate Tribunal thereon and also on the additional copies of the index and return the acknowledgement to the party and he shall also affix his initials on the stamp affixed on the first page of the copies and enter the particulars of all such documents in the register after daily filing and assign a diary number which shall be entered below the date stamp and thereafter cause it to be sent for scrutiny. (2) If, on scrutiny, the appeal or document is found to be defective, such document shall, after notice to the party, be returned for compliance and if there is a failure to comply within seven days from the date of return, the same shall be placed before the Registrar who may pass appropriate orders. (3) The Registrar may for sufficient cause return the said document for rectification or amendment to the party filing the same, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal do not contain any direction with regard to computation of limitation as to whether limitation is to be computed from the date of e-filing of the appeals or from the date when appeals are presented before the Appellate Tribunal as per Rule 22 of the NCLAT Rules, 2016. The Competent Authority has, therefore, decided to issue directions in exercise of power conferred by Rule 104 of the NCLAT Rules, 2016 with regard to computation of limitation for the purposes of filing an appeal in the Appellate Tribunal. Hence, with regard to computation of limitation in appeals, following directions are hereby issued by the Competent Authority: (1) The period of limitation shall be computed from the date of presentation of appeal as per Rule 22 of the NCLAT Rules, 2016. (2) The requirement of filing appeals by electronic mode shall continue along with mandatory filing of the appeals as per Rule 22 of the NCLAT Rules, 2016. (3) This order will be effective with effect from 1-11- 2022. All concerned shall ensure that appeals are presented as per Rule 22 of the NCLAT Rules, 2016 within the period of limitation at the filing counter." 19. The above order dated 21-10-2022 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandatory filing of appeals in terms of Rule 22 of the NCLAT Rules, 2016. 22. Having regard to the above sequence of Rules and administrative orders, it is evident that on the one hand, Rule 22 of the NCLAT Rules, 2016 requires the presentation of an appeal at the filing counter in the prescribed mode, but on the other, NCLAT also envisages e-filing of appeals. This is made evident in the SOP dated 3-1-2021 which mandates the filing of a physical copy of an appeal as per the procedure prescribed in NCLAT Rules, 2016, while referring to the procedure for the hearing of cases through the virtual mode, using the e-filing portal. The subsequent order dated 21-10-2022 acknowledges that there was an absence of 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 1-11-2022. In the present case, admittedly, the appeal was e-filed on 10-10-2022 and even a physical copy was lodged on 31-10-2022 prior to the date on which the order of the Registrar dated 21-10- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder a plaint, a non-plaint in the eye of law, then the date of presentation would be the date of re-filing after removal of defects. If the defects are formal or ancillary in nature not effecting the validity of the plaint, the date of presentation would be the date of original presentation for the purpose of calculating the limitation for filing the suit." A Division Bench of this Court upheld the aforesaid view in D.C. Sankhla v. Ashok Kumar Parmar, 1995 (1) AD (Delhi) 753 and while dismissing the appeal preferred against decision of the Single Judge observed as under: "5....... In fact, that is so elementary to admit of any doubt. Rules 1 and 2 of (O.S.) Rules, 1967, extracted above, do not even remotely suggest that the re-filing of the plaint after removal of the defects as the effective date of the filing of the plaint for purposes of limitation. The date on which the plaint is presented, even with defects, would, therefore, have to be the date for the purpose of the limitation act."" 16. Further, in Indira Gandhi National Open University vs. M/s Sharat Das & Associates Pvt. Ltd. in paragraph 31, the Court laid down the following: "31. The petition sought to impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of Delhi High Court Rules effective from w.e.f 01.12.2018. 20. This Tribunal has occasion to consider this very controversy in larger Bench judgment in V.R. Ashok Rao and Ors. vs. TDT Cooper Ltd., where three Member Bench referred two questions for consideration. The two questions referred before the larger bench have been noticed in paragraph 1 of the judgment, which is as follows: "(a) Whether the law laid down by this Tribunal in "Mr. Jitendra Virmani Vs. MRO-TEK Realty Ltd. & Ors" and three Member Bench Judgement in "Arul Muthu Kumaara Samy Vs. Registrar of Companies" that when the defect in appeal is cured and the Appeal is refiled before the Appellate Tribunal beyond seven days, the date of re-presentation of the Appeal shall be treated as a fresh Appeal, lays down correct law? (b) Whether the limitation prescribed for filing an Appeal before this Appellate Tribunal under Section 61 of Insolvency and Bankruptcy Code, 2016 or Section 421 of the Companies Act, 2013 shall also govern the period under which a defect in the Appeal is to be cured and this Appellate Tribunal shall have no jurisdiction to condone the delay in refiling/representation if it is beyond the limita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which will be kept for the Court Record) and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memorandum of appeal, for the reason specified in Order XLI, Rule 3, Civil Procedure Code. Rule 5(2) If the memorandum of appeal is not taken back, for amendment within the time allowed by the Deputy Registrar/Assistant Registrar, in charge of the Filing Counter under sub-rule (1), it shall be registered and listed before the Court for its dismissal for non-prosecution. Rule (3) If the memorandum of appeal is filed beyond the time allowed by the Deputy Registrar/Assistant Registrar, in charge of the Filing Counter, under sub-rule (1) it shall be considered as fresh institution." Note - The provisions contained in Rule 5 (1), 5(2) and 5(3) shall mutatis mutandis apply to all matters, whether Civil or Criminal." 23. It is relevant to notice that Rule 5(3) of Delhi High Court Rules contemplated that if the memo of appeal is filed beyond time allowed by the Deputy Registrar, it shall be treated as fresh institution but Hon'ble Supreme Court held in the judgment that extension of time granted for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Tribunal on 21.10.2022. It is seen that appeals are e-filed from different parts of the country where the appellant in some cases is located in far away places and time is taken to file physical copy. It is further seen that physical copy is filed within seven days of e-filing. Hence, with regard to computation of limitation in Appeals, following directions are hereby issued by the Competent Authority:- (1) The order F.No.10/37/2018-NCLAT dated 21.10.2022 is hereby withdrawn and superseded by this order. (2) Limitation shall be computed from the date of e-filing. The hard copy has to be filed within 7 days of e-filing. However, the competent authority is at liberty to notify to extend the period of filing hard copy in case of any unforeseen exigency. In a case where hard copy is filed after 7 days, the appeal will be placed before the Tribunal for appropriate order. (3) The requirement of filing Appeals by electronic mode shall continue along with mandatory filing of the Appeals as per Rule 22 of the NCLAT Rules, 2016. (4) This order will be effective with immediate effect. All concerned shall ensure that Appeals are presented as per Rule 22 of the NCLAT Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned order". Shri Sanjeev Sen submits that Hon'ble Supreme Court in V. Nagarajan vs. SKS Ispat and Power Ltd. and Ors. - (2022) 2 SCC 244 has clearly held that applying for a certified copy of the order is not just a technical requirement and the Applicant is obliged to apply for certified copy of the order before filing an Appeal. We need to notice the judgment of the Hon'ble Supreme Court in V. Nagarajan. In the above case, judgment of NCLT was delivered on 31.12.2019. The order of NCLT was uploaded on the website of the NCLT on 12.03.2020. The Appellant awaited the issue of a free copy of the order and obtained free of cost copy of order on 23.03.2020 and thereafter filed an Appeal on 08-06-2020. The NCLAT dismissed the Appeal as barred by time, which order was challenged before the Hon'ble Supreme Court. In the above context, Hon'ble Supreme Court had occasion to consider the provisions of Section 61 of the IBC; Rule 22 of the NCLAT Rules, 2016; and Section 12 of the Limitation Act. The Hon'ble Supreme Court in paragraph 31 laid down following : "31. The import of Section 12 of the Limitation Act and its Explanation is to assign the responsibility of applying for a certified c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Limitation Act there is responsibility assigned on Applicant for applying for certified copy and Application for certified copy has to be applied before expiry of limitation and in the event, it is applied before expiry of limitation, the period taken in obtaining a copy is required to be excluded. The Hon'ble Supreme Court in the said case in paragraph 31 has further held that "if no Application for a certified copy is made, no exclusion can ensue". The Hon'ble Supreme Court has further noticed that there are cases where waivers on filing an Appeal with a certified copy was granted by the Court, which observations are to the following effect : "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." 27. It was further held that 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. Now ..... X X X X Extracts X X X X X X X X Extracts X X X X
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