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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 ..... te of refiling of the Appeal after curing the defects, cannot be treated to be the fresh date of filing of the Appeal for computation of limitation. In the present case, the Appeal having been e-filed on 25.09.2023, i.e. within 30 days from passing of the impugned order dated 28.08.2023, the Appeal cannot be held to be barred by time and the submission advanced by Shri Sanjeev Sen, the Appeal when it was refiled after curing the defects, i.e., 16.01.2024, may be treated as date of filing, cannot be accepted. The date of refiling and date of filing are two different concepts, which are clear from statutory scheme. Thus, non-compliance of Rule 22, sub-rule (2) has not been provided, nor any consequence has been provided in the Rules in the event Appeal is filed without accompanied by a certified copy of the order. When the power has been given to Court to extend the time or waive compliance of any rule, we have no doubt that the Appeal can be filed without applying a certified copy of the orders, in the facts and situation of a particular case - When an Applicant does not apply for a certified copy of the order within the limitation prescribed, he is not entitled to seek any exclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application. Issue notice. Requisites along with process fee be filed within three days. Let Reply be filed by the Respondent within three weeks. Appellant may file Rejoinder within two weeks, thereafter. List this Appeal on 18th March, 2024. 3. The brief background facts giving rise to the Appeal as well as IA Nos.1622 and 1623 of 2024 need to be first noticed: (i) The Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the IBC ) was filed by the Appellant seeking initiation of Corporate Insolvency Resolution Process ( CIRP ) against Respondent No.1, alleging operational debt of Rs.4,75,70,047/- as on 05.01.2018. The Adjudicating Authority issued notice in the Application. The Respondent Corporate Debtor appeared before the Adjudicating Authority and opposed the Application. The Adjudicating Authority after hearing both the parties by the impugned order dated 28.08.2023 dismissed Section 9 Application. Aggrieved by order dated 28.08.2023, the Appellant has e-filed this Appeal on 25.09.2023. (ii) The case of the Applicant/ Respondent is that the Respondent filed a Caveat in respect of the impugned order dated 28.08.2023 on 13.09.2023. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f filing of the Appeal, which filing being much beyond the period of 45 days of the impugned order, the Appeal deserves to be dismissed as barred by time. It is further submitted that the Appellant did not apply for certified copy of the order, nor any certified copy of the order has been filed in the Appeal. Applying certified copy of the order is mandatory as per Rule 22 (2) of NCLAT Rules, 2016 ( NCLAT Rules ), hence, the Appeal also deserve to be dismissed, since it has been filed without applying certified copy of the order. The learned Counsel for the Applicant/Respondent submits that in view of the above, orders passed by this Tribunal condoning the refiling delay of 86 days and issuing notice in the Appeal, deserve to be recalled. 6. The learned Counsel for the Appellant submits that the Appeal having been e-filed on 25.09.2023, which was within 30 days from the impugned order dated 28.08.2023, was filed within limitation period and there is no delay in filing of the Appeal and submission of the Applicant/ Respondent that Appeal was filed with delay, needs to be rejected. It is submitted that as per the NCLAT Rules and orders issued by this Tribunal dated 24.12.2022, the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 was non est and not confining only to the ground of recall as recognized. We, thus, proceed to examine the submissions advanced by the learned Counsel for the Applicant/ Respondent on merits on all aspects regarding filing of the Appeal and condonation of refiling delay. 10. The submission, which has been much pressed by the learned Counsel for the Applicant/ Respondent is that e-filing on 25.09.2023 of the Appeal by the Appellant was non est filing, since the filing date 25.09.2023 was not - with the copy of the impugned order; notarised affidavit and according to the Appellant on 15.12.2023 for the first time, notarised affidavit was filed and relevant Applications as well as uncertified copy of the order was annexed. It is submitted that filing on 25.09.2023 was only filing of bunch of papers, which cannot be treated as filing of Appeal for the purpose of computation of limitation. The Appeal having been refiled after removing the defects on 16.01.2024, that should be treated as fresh filing and limitation be computed from the said date and computing the limitation from 16.01.2024, the Appeal having been filed beyond the 45 days, deserves to be dismissed as barred by time. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e return the said document for rectification or amendment to the party filing the same, and for this purpose may allow to the party concerned such reasonable time as he may consider necessary or extend the time for compliance. (4) Where the party fails to take any step for the removal of the defect within the time fixed for the same, the Registrar may, for reasons to be recorded in writing, decline to register the appeal or pleading or document. 13. Rule 103 of the Rules, contemplate that the Appellate Tribunal may allow filing of appeal or proceedings through electronic mode. Necessary orders have been issued by the Appellate Tribunal, permitting e-filing. The relevant orders regarding e-filing has already been passed by this Tribunal in this regard. As far as point of date of computation of limitation, the same has been considered by the Hon ble Supreme Court in Sanket Kumar Agarwal and Anr. vs. APG Logistics Pvt. Ltd. (2024) 2 SCC 545. After noticing Rule 22 and Rule 103 of the NCLAT Rules, 2016, the Hon ble Supreme Court in paragraph 17 to 22, laid down following: 17. On 3-1-2021, NCLAT notified a revised SOP for the hearing of cases through the virtual mode, using its e-filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter. 19. The above order dated 21-10-2022 indicates that the SOPs and directions which were issued by NCLAT did not contain any provision for the computation of limitation, more specifically on whether limitation has to be computed with reference to the date of e-filing or from the date on which the appeal is presented before NCLAT, in terms of Rule 22. Hence, in exercise of the power conferred by Rule 104, it was notified that the period of limitation would be computed with reference to the date of the presentation of the appeal in terms of Rule 22. Moreover, the requirement of filing appeals by the electronic mode was directed to continue together with the mandatory filing of appeals under Rule 22. The order dated 21-10-2022 was to be effective from 1-11-2022. 20. Eventually, on 24-12-2022, another order was issued by the Registrar of NCLAT in the following terms: 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, follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar dated 21-10-2022 was to come into effect. The order dated 21-10-2022 was subsequently withdrawn on 24- 12-2022. The order dated 24-12-2022 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 . 14. The Hon ble Supreme Court noticed the orders issued by this Tribunal on 24.12.2022, according to which the limitation shall be computed with reference to the date of e-filing. It is relevant to notice that after the order/ circular dated 24.12.2022, by another order, this Tribunal has dispensed with the mandatory requirement of physical filing. 15. The learned Counsel for the Applicant/ Respondent has relied on the judgment of the Delhi High Court in Delhi Development Authority vs. Durga Construction Co. 2013 SCC OnLine Del 4451; Indira Gandhi National Open University vs. M/s Sharat Das Associates Pvt. Ltd. [OMP (COMM) No.26/2019] and IRCON International Ltd. vs. Reacon Engineers 9India) (P) Ltd. (2022) 4 HCC (Del) 507. The Delhi High Court in Delhi Development Authority vs. Durga Constructions, in paragraph 17 has laid down following: 17. The cases of delay in re-filing are diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Additional Award without even annexing the same. Clearly what was filed was merely a bunch of papers to somehow stop the period of limitation from running. The petitioner thereafter made no endeavour to refile the petition with expedition once the same had been returned back under objection on 15.01.2019. The petitioner took another two months to refile the petition only on 26.03.2019, albeit, still under defects. This filing was beyond a period of 30 days from three months of receipt of the Additional Award by the petitioner. 17. In IRCON International Ltd. vs. Reacon Engineers (India) (P) Ltd. in paragraphs 13, 14 and 15, the Hon ble Court laid down following: 13. As noted above, the initial filing was only seventy-three pages. The petition was not accompanied by a copy of the award or any other document. It was also not accompanied by a statement of truth which is mandatorily required. 14. As noted above, the petition as subsequently filed on 24-10-2019 spanned over 1325 (one thousand three hundred and twenty-five) pages including documents. It is, thus, apparent that the entire framework of the petition was changed. 15. There is merit in the respondent s contention that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Companies Act, 2013. 21. Earlier judgments of this Tribunal in Jitendra Virman v. MRO-TEK and Arul Muthu Kumaara Samy vs. Registrar of Companies have also taken the view that when the Appeal is refiled as defect free, the Appeal should be treated as fresh Appeal. The correctness of the above judgment was referred before the larger Bench and larger Bench, after considering the relevant NCLAT Rules as well as judgments of Delhi High Court, which have been relied before us also took the view that the computation of limitation in reference to this Appellate Tribunal has to be from the date of e-filing of the Appeal. Judgment of Delhi High Court in Delhi Development Authority vs. Durga Construction, which is relied before us, was also noticed in the said judgment. It is useful to refer to paragraph 21, 22 and 23 of the judgment of this Tribunal, which is as follows: 21. In the above case Hon ble Supreme Court clearly laid down that limitation for filing of the objection as contained in Section 34(3) does not govern the limitation for re-filing. The submission before the Hon ble Supreme Court relying on Rule 5(3) of Delhi High Court Rules (Original Side Rules 1967) that any re-filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as noticed above, there is no indication of concept of fresh filing, if defects are not cured in 7 days as has been expressly provided in Delhi High Court Rules. We, thus, are of the view that in reference of Rule 26, re-presentation beyond 7 days in no manner said to be fresh filing. The judgment of this Tribunal in Jitendra Virmani (supra) cannot be held to lay down a correct law. 22. The above judgment of this Tribunal was delivered on 30.08.2022, whereas, as noted above, this Tribunal has issued order under Rule 103 dated 24.12.2022, where the question of computation of limitation has been clearly explained. It is relevant to relevant to extract the entire order dated 24.12.2022, which is issued by this Tribunal, is as follows: NATIONAL COMPANY LAW APPELLATE TRIBUNAL F.No. 23/4/2022-Estt./NCLAT Dated: 24th December, 2022 ORDER National Company Law Appellate Tribunal Rules, 2016 (NCLAT Rules, 2016), Rule 22 provides for Presentation of appeal , which is to be made at the filing counter of the Appellate Tribunal. As per Rule 103 of the NCLAT Rules, 2016, Appellate Tribunal has also permitted filing of the Appeal or proceedings through electronic mode (e-filing). SOPs have also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oticed by the Hon ble Supreme Court in Sanket Kumar Agarwal and Anr. leaves no doubt that computation of limitations has to be done from the date of e-filing of the Appeal and any other interpretation of the Rules and the Orders issued by this Tribunal is not permissible. In any view of the matter, we are clearly bound by the larger Bench judgment of this Tribunal, where it has been held that refiling after curing the defects, cannot be treated as fresh filing and shall only be refiling/re-presentation. 24. The NCLAT Rules 2016 itself contemplates communication of defects and the removal of the defects in the Appeal. Rule 26, sub-rule (4) further empowers the Registrar in appropriate case, to decline to register the Appeal or filing of any documents. Thus, power is vested with the Registrar to decline to register Appeal when defects are not cured. The procedure for clearing the defects, empowers the Registrar to grant further time for clearing the defects, itself contemplate that defective Appeal filed by the Appellant is permitted to be cured and in event the defects are not cured, the Appeal can be refused to be registered. But when defects are cured and the Appeal is registered, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [ 14. Power to exempt. The Appellate Tribunal may on sufficient cause being shown, exempt the parties from compliance with any requirement of these rules and may give such directions in matters of practice and procedure, 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 inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-rule (2) as extracted above clearly contemplate that every Appeal shall be accompanied by a certified copy of the order, whether the said requirement is mandatory or can be held to be directory . 28. We may consider Rule 14 and 15 of the NCLAT Rules in the above reference. Rule 14 and 15 of the NCLAT Rules, 2016 are as follows: 14. Power to exempt.- The Appellate Tribunal may on sufficient cause being shown, exempt the parties from compliance with any requirement of these rules and may give such directions in matters of practice and procedure, as it may consider just and expedient on the application moved in this behalf to render substantial justice. 15. Power to extend time.- The Appellate Tribunal may extend the time appointed by these rules or fixed by any order, for doing any act or taking any proceeding, upon such terms, if any, as the justice of the case may require, and any enlargement may be ordered, although the application therefore is not made until after the expiration of the time appointed or allowed. 29. It is to be noted that non-compliance of Rule 22, sub-rule (2) has not been provided, nor any consequence has been provided in the Rules in the event Appeal is file ..... X X X X Extracts X X X X X X X X Extracts X X X X
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