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TMI Blog2024 (11) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order dated 27.04.2022 by which the application filed by the Appellant under Section 9 of the Code r/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against Respondent No. 1 bearing CP (IB) No. 2082/KB/2019 has been dismissed by the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench). 3. Notice in the application for condonation of delay was issued to which reply has been filed by Respondent No. 1. 4. Impugned order was passed on 27.04.2022 by the Tribunal. Certified copy of the impugned order was prepared on 29.04.2022 which was received by the Appellant through registered post on 09.05.2022. The appeal was prepared on 27.05.2022 and e-filed on 30.05.2022. A delay of 3 days has occurred in filing the appeal. 5. Averments made by the Appellant in the application for condonation of delay are as under:- "3. The instant Application is being filed by the Appellant seeking condonation of delay of 3 days n filing the accompanying appeal. 4. That the certified copy of the judgment and/or order that was passed by the Hon'ble National Company Law Tribunal, Kolkata Bench, Kolkata was made over by the depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay in filing the accompanying Appeal may be condoned." 6. The application has been opposed by Respondent No. 1 by filing reply to it in which following averments have been made:- "3. The Impugned Order was passed by the Ld. National Company Law Tribunal, Kolkata in C.P. (IB) (KB) No. 2082 of 2019 on 27 April 2022 ("Impugned Order"). The present Appeal was e-filed by the Appellant on 30 May 2022 and thereafter, hard copy of the appeal was filed on 20 June 2022. It is pertinent to mention here that the Appeal was filed without an application seeking condonation of delay in filing the Appeal. I.A. No. 5695 of 2023 ("IA 5695") was filed belatedly by the Appellant on 29 November 2023 seeking condonation of delay in filing the Appeal. 4. The Appellant, in IA 5695, claims that due to summer holidays in Calcutta High Court, the advocate's office was closed on 28 May 2022 and 29 May 2022. Thereafter, the Appeal was e-filed on 30 May 2022. The Appellant purports that the clock of limitation stopped on 30 May 2022 when the Appeal was e-filed. However, admittedly, the hard copy of the Appeal was filed after an inordinate delay on 20 June 2022, despite the summer vacation of Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r expired on 27 May 2022 and 45 days expired on 11 June 2022. The present Appeal was filed on 20 June 2022 after a delay of 9 days. 9. This Hon'ble Tribunal, vide order F.No.10/37/2018- NCLAT dated 21 October 2022, directed that the period of limitation, with regard to computation of limitation in Appeals, shall be computed from the date of presentation of Appeal as per Rule 22 of the NCLAT Rules, 2016. True copy of order F.No.10/37/2018- NCLAT dated 21 October 2022 issued by this Hon'ble Tribunal is annexed herewith and marked as Annexure A - 3. A copy of Rule 22 of the National Company Law Appellate Tribunal Rules, 2016 is annexed herewith and marked as Annexure A - 4. 10. The order F.No.10/37/2018-NCLAT dated 21 October 2022 was withdrawn by this Hon'ble Tribunal vide F. No. 23/4/2022- Estt./NCLAT dated 24 December 2022, wherein this Hon'ble Tribunal clarified that the limitation in filing of Appeals shall be computed from the date of e-filing. The order further clarified that hard copy has to be filed within 7 days of e-filing of the Appeal. True copy of order F.No. 23/4/2022- Estt./NCLAT dated 24 December 2022 issued by this Hon'ble Tribunal is annexed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.2024 and Somdev Kappor Vs. State of West Bengal & Ors. (2014) 14 SCC 486. 10. We have heard Counsel for the parties and perused the record. 11. There is no dispute that the impugned order was passed on 27.04.2022. Certified copy of the impugned order was prepared on 29.04.2022 and received on 09.05.2022. The appeal was verified on 27.05.2022 and e-filed on 30.05.2022. The hard copy of the appeal was however filed on 20.06.2022. It is also not to dispute that if the period of limitation is counted from the date of e-filing then there is a delay of three days only and if the limitation is to be counted from the date of the presentation of appeal then the appeal is beyond the period of limitation. 12. The issue is thus as to whether the date of limitation is to be counted from the date of e-filing or the date of presentation of appeal? 13. Since, the appeal has been filed under Section 61 of the Code, therefore, it will be useful to refer to the relevant part of Section 61 of the Code which is reproduced as under:- "(1) Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval of difficulties and issue of directions which is reproduced as under:- "104. Removal of difficulties and issue of directions.- Notwithstanding anything contained in the rules, wherever the rules are silent or not provisions is made, the Chairperson may issue appropriate directions to remove difficulties and issue such orders or circulars to govern the situation or contingency that may arise in the working of the Appellate Tribunal." 19. In exercise of its power in terms of Rule 104, the SOP is being issued from time to time by the Chairperson of this Tribunal and in this regard, it would be relevant to refer to SOP dated 03.01.2021 which is reproduced as under:- "Dated: 03.01.2021 National Company Law Appellate Tribunal Revised Standard Operating Procedure for Ld. Advocate/ Authorised Representative/Party-in-Person for hearing/Mentioning the matter through virtual mode. As directed, the following is the revised Standard Operating Procedure for hearing of cases through virtual mode (Cisco Webex Meeting Platform) using the e-filing portal (https://efiling.nclat.gov.in ) from 04.01.2021. NCLAT e-filing facility is now available for filing of Appeal/ Interlocutory App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be sent to the e-mail ID mentioned in their Appeal/Interlocutory application. Please note that a maximum of three appearance links will be provided per party (AOR, Junior Lawyer, Sr. Advocate / Arguing Counsel) and that it should not be shared with anyone. 8. The standard protocol about one person speaking at a time in VC shall be followed. All the parties shall be given chance, in turns, to present their case by the Hon'ble Bench. Any attempt to jump in during the presentation by another party may disrupt the proceedings. It may also invite 'muting' of the microphone of the disrupting party. In case a person wants to make a point she/he may raise her/his hand to invite the attention of the Hon'ble Bench. She/he can start speaking only after she/he has been allowed to do so. Cross talking or discussion could be done only after the mic has been put in 'mute' mode. 9. The directions of the Hon'ble Bench should be strictly followed at all times in VC to enable smooth hearing. 10. The decorum regarding dress of presenters and in verbal presentations should be maintained. 11. Any recording and use in any manner of the proceedings of the hearing through VC is strictly pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being asked, the party may make submissions and on completion of the submissions, shall at once 'mute' the MIC of the respective device. If the Hon'ble Bench requires the party to make further submission(s), the party may then 'unmute' the MIC of the device and again, on completion of the submission, put the MIC on 'mute' mode. 5. It is important for the parties to remember to keep their MIC on 'mute' at all times, except when the Hon'ble Bench requires them to make submission(s). Thus, when one party is making submissions, it is imperative that all other participants shall keep their respective MIC muted failing which the possibility of MIC catching audio feed from the speakers and creating `echo/noise disturbance' would become very high and may disturb the video conference. 6. It may be noted that simultaneous submissions by more than one party at any given time should be avoided and each party may indicate their requirement to speak/submit by seeking permission from the Hon'ble Bench, by raising hand. Once permitted by the Hon'ble Bench, the party shall first 'unmute' the MIC and thereafter make submissions, as per clauses 4 and 5 above. 7. During the course of hearing thr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal. 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 been issued with regard to e-filing. SOP dated 3rd January, 2021 further provides: - "It may be noted that it is mandatory that Ld. Advocates/ Authorised Representatives/ Parties-in- Person shall file the Appeal/Interlocutory Application/Reply/ Rejoinder etc. in hard copy also as per the procedure prescribed in NCLAT Rules, 2016 along with the e-filing receipt. The online filing & hard copies must match with proper pagination. The Court Fee shall be paid through Bharat Kosh ( https://bharatkosh.gov.in ) and the payment receipt should be attached." The SOPs and directions issued by the Appellate 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als are presented before the Appellate Tribunal as per Rule 22 of the NCLAT Rules, 2016. The Competent Authority 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 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22 of the NCLAT Rules 2016 provides for the presentation of an appeal at the filing counter of the NCLAT, Rule 103 permits the filing of appeals or proceedings through the electronic mode. After adverting to the SOP dated 3 January 2021, the order indicates as follows: "The SOPs and directions issued by the Appellate 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 fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion at the filing counter." 21. Hence, by the order dated 24 December 2022, it was clarified that limitation shall be computed with reference to the date of e-filing while the physical copy would have to be filed within seven days of e-filing. The order clarifies that the requirement of filing appeals by the electronic mode shall continue together with the 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 January 2021 which mandates the filing of a physical copy of an appeal as per the procedure prescribed in the 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 October 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations, that was the situation prevailing in the year 1998, a factor which was taken note of in not entertaining the respondent's application, whether it was submitted on 12.1.1987 or on 22.11.1998. We cannot, in any way, activate an out-modeled, outdated, forgotten liquor policy of 1998, in the year 2013, by a Writ of Mandamus." 27. Since, the appeal has been filed by the Appellant on 30.05.2022 through e-filing and the hard copy was filed on 20.06.2022 though before coming into force the SOP dated 21.10.2022 which has been made effective from 01.11.2022, the SOP dated 21.10.2022 has been withdrawn by SOP dated 24.12.2022 and it has been ordered that limitation is to be counted from the date of e-filing, therefore, in view of the decision of the Hon'ble Supreme Court in the case of Somdev Kappor (Supra) where it has been held that the rules which are prevalent on the date when the application is considered are to be applied and not the date when the application is made, the application having been filed by the Appellant has to be considered in terms of SOP dated 24.12.2022 which is in operation at the time when the application for condonation of delay is being considered. 28. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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