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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 ..... me. In no case, the period beyond 15 days can be extended. 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into force the SOP dated 21.10.2022 which has been made effective from 01.11.2022, the SOP dated 21.10.2022 has been withdrawn by SOP dated 24.12.2022 and it has been ordered that limitation is to be counted from the date of e-filing, therefore, in view of the decision of the Hon ble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 [ 2013 (10) TMI 384 - SUPREME COURT ] 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. The argument raised by Respondent No. 1 not agreed upon, that limitation is to be counted from the date of presentation of appeal at the counter because the issue of computation of limitation was first determined by way of SOP dated 21.10.2022 whereas the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 department of the National Company law tribunal, Kolkata Bench, Kolkata, on 9th May, 2022 to the Learned Advocate representing the appellant. The certified copy of the impugned judgement and order thought being made over on 9th May 2022, the period prescribed for preferring an appeal runs one day subsequent from the date of the order. 5. It is submitted that the certified copy of the impugned order was dispatched to the appellant on 06.05.2022 as per the postal receipt affixed on the envelope containing certified copy of the impugned order duly signed by the Dispatcher, National Company law tribunal 5, Esplanade Row (West) Kolkata- 700001 and was delivered on 09.05.2022 as per the tracking report of the postal receipt. After receiving the impugned order the appellant instructed its erst while advocate to provide him with all records of the case and in the mean while he contacted his present advocate for filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled 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 High Court ending on 4 June 2022. True copy of Calendar of High Court of Calcutta and List of Holidays of High Court of Calcutta for the year 2022 is annexed herewith and marked as Annexure A-1 5. On the date of filing of the Appeal, the Revised Standard Operating Procedure for Ld. Advocate/ Authorised Representative / Party-in Person for hearing/Mentioning the matter through virtual mode dated 3 January 2021 was applicable to filing of fresh Appeal. The SOP clearly mentioned that '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. ' True copy of Revised Standard Operating Procedure for Ld. Advocate/ Authorised Representative / Party-in-Person for hearing/Mentioning the matter through virtu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mputed 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 herewith and marked as Annexure A - 5. 7. It is alleged by the Respondent that if the limitation is to be counted from the date of e-filing then there would be three days delay which is not seriously contested but since the hard copy has been filed on 20.06.2022, therefore, in view of Rule 22 of the NCLAT Rules, 2016 (NCLAT Rules) coupled with SOP dated 21.10.2022, the limitation is to be counted from the date of presentation of appeal at the counter and not from the date of e- filing. 8. It is further submitted that the limitation if counted from the date of presentation of appeal on 20.06.2022 then it would be 54 days of the passing of the impugned order whereas the appeal has to be filed within a period of 30 days which is statutorily provided under Section 61 and only a period of 15 days is further provided in proviso to Section 61(2) of the Code and no period of limitation can be further extended. 9. In reply, Counsel for the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal: Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days. 14. As per the above provisions, any person who is aggrieved against the order passed by the Tribunal has a statutory right to file an appeal before the Appellate Tribunal. Section 61(2) provides statutory period of 30 days for filing such an appeal, however, if the proposed Appellant failed to file the appeal within a period of 30 days for some reason then Section 61(2) proviso gives another period of 15 days to file the appeal provided it satisfy the Appellate Tribunal that there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh 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 Application/ Reply/ Rejoinder etc. Therefore, all concerned are requested to avail the same through NCLAT e-filing portal (https://efiling.nclat.gov.in) w.e.f. 04.01.2021. The URL for the same is available on NCLAT website (www.nclat.nic.in). 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. MENTIONING 1. The mentioning application shall be submitted only by e-mail at the email address [email protected]. 2. After curing the defects, the cases would be listed in the cause list to be published on the NCLAT website (www.nclat.nic.in). 3. The mentioning application must inter-ali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess 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 prohibited. Infringement may invite stringent action against the erring party. INSTRUCTIONS FOR JOINING VIDEO CONFERENCING The parties may note that, for the present, the matters shall be heard by the Hon ble Bench through web-based video-conferencing system on the CISCO Webex Meeting platform. It may be further noted that the smooth functioning of the video-conference is squarely dependent upon and subject to the connectivity [signal strength/bandwidth] available at the end of the remote user(s), and hence it is expected that any party joining a hearing through video- conference shall ensure that robust connectivity and bandwidth are available at their end. In this regard, parties may use broadband connection of minimum 2 Mbps/dedicated 4G data connection. The parties may also ensure that no other device or application is connected to or using the bandwidth when the hearing by video-conferencing is progressing on their CISCO Webex-enabled computer (preferable) or mobile. For ease-of-use, parties may kindly note the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first unmute the MIC and thereafter make submissions, as per clauses 4 and 5 above. 7. During the course of hearing through video- conferencing, the parties may kindly keep in mind that they are participating in COURT PROCEEDINGS, and hence it is expected that they would not resort to any indecorous conduct or dress or comment. Further, the parties are required to ensure that the proceedings by video conference are neither recorded/stored nor broadcasted, in any manner whatsoever, as recording/copying/storing and/or broadcasting, by any means of the hearings and proceedings before the Tribunal is expressly prohibited. A breach of this rule shall apart from entailing penal consequences, render such recording inadmissible in any court proceedings. 8. Parties are required to stay online (but in MUTE mode) till the Hon'ble Bench concludes the hearing of their matter, whereafter the parties may disconnect from video-conference. 9. After publication of cause list, a link for video conferencing will be provided to Learned Advocate/Authorised Representative/ Party-in-Person by the Registry through e-mail/SMS half an hour before the hearing of the matter. 10. The Competent Authority ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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 1st November, 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. By Order of the Hon ble Chairperson Sd/- (Peeush Pandey) Registrar 22. According to this SOP, it was decided that the period of limitation is to be computed from the date of presentation of appeal as per Rule 22 of the Rules but this was made effective from 01.11.2022. 23. SOP dated 21.10.2022 was withdrawn by another SOP dated 24.12.2022 which is also reproduced as under:- NATI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 Rules, 2016 within the period of limitation at the filing counter. By Order of the Hon ble Chairperson (Peeush Pandey) Registrar 24. Thereafter, another SOP was issued on 21.02.2023 which is also reproduced as under:- NATIONAL COMPANY LAW APPELLATE TRIBUNAL F.No. 23/4/2022-Estt./NCLAT Dated: 21st February, 2023 ORDER In continuation of the order F. No. 23/4/2022- Estt./NCLAT dated 24.12.2022, with the approval of the Competent Authority, it is hereby directed that the appeals filed before the NCLAT in the duration between 01.11.2022 to 23.12.2022 shall also get the benefit of the order dated 24.12.2022 with regard to computation of limitation in Appeals. The other conditions of the order dated 24.12.2022 shall remain unchanged. By Order of the Hon ble Chairperson Sd/- (Peeush Pandey) Registrar 25. The Hon ble Supreme Court in the case of Sanket Kumar Agarwal Anr. (Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per Rule 22 of the NCLAT Rules, 2016. (3) This order will be effective with effect from 1 st November, 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 October 2022 indicates that the SOPs and directions which were issued by the 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 the 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 October 2022 was to be effective from 1 November 2022. 20. Eventually, on 24 December 2022, another order was issued by the Registrar of NCLAT in the following terms: It is seen that appeals are e-filed fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted from the date of the presentation of an appeal under Rule 22. Significantly, the above order was to be effective from 1 November 2022. In the present case, admittedly, the appeal was e-filed on 10 October 2022 and even a physical copy was lodged on 31 October 2022 prior to the date on which the order of the Registrar dated 21 October 2022 was to come into effect. The order dated 21 October 2022 was subsequently withdrawn on 24 December 2022. The order dated 24 December 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. 26. This Tribunal in the case of Innovators Cleantech Pvt. Ltd. (Supra) has also relied upon the decision in the case of Sanket Kumar (Supra) and held that if the appeal is e-filed then it is within the period of limitation. The Hon ble Supreme Court in the case of Somdev Kapoor (Supra) has further held that 13. It would also be significant to state that as per the law laid down by this Court, 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. This is so held in St ..... X X X X Extracts X X X X X X X X Extracts X X X X
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