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TMI Blog2025 (2) TMI 962X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Prachi Dhingra, Advocates For the Respondent : Mr. Naveen Hegde, Mr. Akshay Puri, Mr. Mayank Samuel, Advocates for R-1. Mr. Sidharth Sehti, Mr. Kunal Saini, Advocates for R-3 (NSDL). Mr. Neeraj Malhotra, Sr. Advocate with Mr. Mohit Kumar, Bafna, Mr. Abhishek Baid, Mr. Praneet Das, Mr. Nimish Kumar, Advocates for R-5 (SEBI) JUDGMENT ASHOK BHUSHAN, J. These two Appeal(s) have been filed against the same order of the Adjudicating Authority dated 31.07.2024 passed by National Company Law Tribunal, Mumbai Bench, Court-III in IA/928/2023. By the order impugned, the Application filed by the Liquidator (Respondent No.1) has been allowed. Aggrieved by the aforesaid order both BSE Ltd. and National Stock Exchange of India Ltd. have filed these Appeal(s). 2. Both the Appeal(s) have been filed after the prescribed period of limitation of 30 days and application for condonation of delay being IA No.6846/2024 has been filed in Company Appeal (AT) (Insolvency) No. 1862 of 2024 and IA No.6950/2024 has been filed in Company Appeal (AT) (Insolvency) No. 1883 of 2024. We have heard learned Counsel for the parties on delay condonation application in both the Appeals. 3. Brief facts need to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned is of 31.07.2024 and the Appeal has been filed on 17.09.2024. The application prays for condonation of delay of 18 days, praying that period shall be extended till 17.09.2024, 15.09.2024 and 16.09.2024 being holidays. 4. We have heard Shri Abhishek Puri, learned Counsel appearing for the Appellant in IA No.6846 of 2024 and Shri Abhijeet Sinha, learned Senior Counsel appearing for the Appellant in IA No.6950 of 2024; Shri Naveen Hegde, learned Counsel for Respondent No.1; Shri Neeraj Malhotra learned Senior Counsel has appeared for SEBI; Shri Siddharth Sehti, learned Counsel has appeared for NSDL. 5. Shri Abhishek Puri, learned Counsel appearing for the BSE Ltd. submits that application for condonation of delay filed by the Appellant is within condonable period and the Appellant being an organization, which require requisite approval and deliberations, delay deserve to be condoned. It is submitted that certified copy having been applied on 07.08.2024 and received on 08.08.2024, two days period need to be excluded. It is further contended that 15.09.2024 and 16.09.2024 being holidays, the Appeal was filed with the delay of 14 days and the period of 15 days condonable period ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable by virtue of Section 238A of the IBC. It is submitted that Rule 3 has to be harmoniously construed and Rule 3, cannot be read to mean that when 15 days period is expiring and the Court is closed for holiday, the said period need to be excluded. It is further submitted by learned Counsel for the Respondent that the period of limitation prescribed under Section 4 of the Limitation Act, cannot be excluded, even if 30 days period is expiring on holiday. What law provides is extension of the period for filing an Appeal, hence, for computation of 30 days period for limitation, there is no applicability of Section 4 of the Limitation Act. He submits that in the present case, 30 days period for filing the Appeal came to an end on 30.08.2024, hence, the fact that 31.08.2024 was Saturday and 01.09.2024 was Sunday, will not be available for any exclusion for filing an Appeal within a period of 30 days. Hence, both the Appeal(s) have been filed beyond condonable period and the application(s) praying for condonation of delay need to be rejected. 8. Learned Counsel appearing for the SEBI also supported the submission of the Appellant(s) and submitted that delay deserve to be condoned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r under any other law or is fixed by the Appellate Tribunal for doing any act, in computing the time, the day from which the said period is to be reckoned shall be excluded, and if the last day expires on a day when the office of the Appellate Tribunal is closed, that day and any succeeding day on which the Appellate Tribunal remains closed shall also be excluded" 14. What is the prescribed period of limitation for filing an Appeal needs to be first considered. 15. Section 61, sub-section (2) clearly provides that prescribed period for limitation is 30 days for filing an Appeal under sub-section (1) of Section 61. The proviso, which empowers the National Company Law Appellate Tribunal to allow an Appeal after expiry of the said period of 30 days, if there is sufficient cause for not filing the Appeal, but such period shall not exceed 15 days, is the period, which cannot be held to be prescribed period. The proviso uses the expression "after the expiry of the said period of thirty days", which clearly means that prescribed period for limitation is only 30 days. The submission of learned Counsel for the Appellant is that 15 days period, which is condonable period is also a period, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three judgments of the Hon'ble Supreme Court, which were relied before this Appellate Tribunal. This Tribunal referring to the judgment of the Hon'ble Supreme Court in Assam Urban Water Supply and Sewerage Board vs. Subhash Projects and Marketing Ltd. - (2012) 2 SCC 624 clearly held that the period of one month under which the delay in filing the application should be condoned is not the period of limitation. It is useful to extract paragraphs 31, 32, 33, 34 and 35 of the judgment of this Tribunal in State Bank of India vs. Darwin Platform Infrastructure Ltd. & Ors., which are as follows: "31. Hon'ble Supreme Court in paragraph 10 held that three months' period for filing an application for setting aside the award came to an end on 26th November, 2003 and the extended period of one month under which the delay in filing the application should be condoned is not the period of limitation. It is relevant to notice paragraph 10 to 14 of the Judgment which is to the following effect: "10. The facts in the present case are peculiar. The arbitral awards were received by the appellants on 26-8-2003. No application for setting aside the arbitral awards was made by the appellants before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows sub-section (3) of Section 34 of the 1996 Act is not the "period of limitation" and, therefore, not the "prescribed period" for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the "period of limitation" or, in other words, the "prescribed period", in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case." 32. The ratio of the above judgment is categorical that the period of 30 days which the Court may extend on sufficient cause is not the period of limitation hence the benefit of Section 4 is applicable only with regard to period of limitation prescribed for filing an application. 33. Learned Counsel for the Respondent has also placed reliance on recent Judgment of Hon'ble Supreme Court in "Bhimashankar Sahakari Sakkare Karkhane Niyamita" (supra) where Hon'ble Supreme Court has occasion to consider both the Judgment i.e. Assam Urban Water Supply and Sridevi Datla. In "Bhimashankar Sahakari Sakkare Karkhane Niyamita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving been filed within 30 days condonable period as contemplated in proviso of Section 34(3) and the said period expired on day when court was closed for Summer Vacation Appeal could have been filed on the reopening day i.e. 02.01.2017. The said submission was not accepted. The question which came for consideration was noticed by Hon'ble Supreme Court in paragraph 31 of the Judgment which is as follows: "31. It is submitted that therefore the following questions arise for consideration in the present case: 31.1. Whether the benefit of Section 4 of the Limitation Act, 1963 is available to a party when the "prescribed period" of 3 months for filing a petition under Section 34(3) of the Arbitration Act has already expired and the discretionary period of 30 days under the proviso to Section 34(3) falls on a day when the Court is closed? 31.2. Whether the benefit of Section 10 of the General Clauses Act, 1897 is separately available to a party in such circumstances?" 35. In paragraph 46 to 50, Hon'ble Supreme Court laid down following: "46. Therefore, the central question in the present appeal is whether when the last day of condonable period of 30 days [under Section 34( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that nothing in this section shall apply to any act or proceeding to which the Limitation Act, 1877, [ See now the Limitation Act, 1963 (36 of 1963).] applies. (2) This section applies also to all [Subs. for "Acts of the G.G. in C" by the A.O. 1937.] [Central Acts] and Regulations made on or after the fourteenth day of January, 1887." 50. Section 34(3) of the Arbitration Act and Sections 2(j) and 4 of the Limitation Act, 1963 fell for consideration before this Court in Assam Urban [Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. Ltd., (2012) 2 SCC 624 : (2012) 1 SCC (Civ) 831] . Even the very issue raised in the present appeal fell for consideration before this Court in Assam Urban [Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. Ltd., (2012) 2 SCC 624 : (2012) 1 SCC (Civ) 831] . In the aforesaid decision, this Court interpreted the aforesaid provisions and has specifically observed and held that the benefit of exclusion of period during which Court is closed is available only when application for setting aside the award is filed within "prescribed period of limitation" and it is not available in respect of period extendable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of this Court in Sridevi Datla v. Union of India [Sridevi Datla v. Union of India, (2021) 5 SCC 321] relied upon on behalf of the appellant is concerned, at the outset it is required to be noted that in the said decision, this Court has not noticed the decision in Assam Urban [Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. Ltd., (2012) 2 SCC 624 : (2012) 1 SCC (Civ) 831] and there is no discussion on distinction between "prescribed period" and the "discretionary condonable period". On the other hand, the binding decision of this Court in Assam Urban [Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. Ltd., (2012) 2 SCC 624: (2012) 1 SCC (Civ) 831] is directly on point." 38. We have already noticed that provisions of Limitation Act are applicable to the Insolvency and Bankruptcy Code, 2016 hence there is no applicability of Section 10 of the General Clauses Act which was relied on by Hon'ble Supreme Court in Sridevi Datla Case. 39. The ratio of the Judgments of the Hon'ble Supreme Court in Assam Urban Water Supply and Bhimashankar Sahakari Sakkare Karkhane Niyamita are fully applicable in the present case and relying on the said judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, this may be, there is, in my opinion, no justification for regarding as obiter dictum a reason given by a Judge for his decision, because he has given another reason also. If it were a proper test to ask whether the decision would have been the same apart from the proposition alleged to be obiter, then a case which ex facie decided two things would decide nothing. A good illustration will be found in London Jewellers Ltd. v. Attenborough [London Jewellers Ltd. v. Attenborough, (1934) 2 KB 206 (CA)] . In that case the determination of one of the issues depended on how far the Court of Appeal was bound by its previous decision in Folkes v. R. [Folkes v. R., (1923) 1 KB 282 (CA)] , [in which] the court had given two grounds for its decision, the second of which [as stated by Greer, L.J., in Attenborough case [London Jewellers Ltd. v. Attenborough, (1934) 2 KB 206 (CA)] ] was that : (KB p. 222) "... where a man obtains possession with authority to sell, or to become the owner himself, and then sells, he cannot be treated as having obtained the goods by larceny by a trick." In Attenborough case [London Jewellers Ltd. v. Attenborough, (1934) 2 KB 206 (CA)] it was contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Mr Himani that this case cannot be regarded as an authority for the proposition that Sections 23 and 28 of the Contract Act are out of harm's way when it comes to enforcing a foreign award under the Foreign Awards Act, 1961, where both parties are Indian companies." 22. We, thus, are of the view that judgment of this Tribunal in in State Bank of India vs. Darwin Platform Infrastructure Ltd. & Ors. (supra) cannot be said to be an obiter with regard to Question No.ii, which Question No.ii was specifically considered and decided. Hence, the ratio laid down by this Tribunal in State Bank of India vs. Darwin Platform Infrastructure Ltd. & Ors., is a ratio, with which we are bound and have to follow. We, thus, are of the view that Question No.1 need to be answered holding that 15 days condonable period, even if it is coming to an end on a day, when the Tribunal is closed, the benefit of Rule 3 or Section 4 of the Limitation Act cannot be extended. Question No. 2 23. The submission which has been pressed by learned Counsel for the Respondent is that for computation of 30 days period of limitation there shall be no exclusion, in event the 30th day is expiring on a day when of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Saturday and Sunday, the Appeal could have been filed on 02.09.2024, which was the day when the Appellate Tribunal was to re-open. The judgment of Raj Kumar Banerjee vs. Supriyo Kumar Chaudhuri - (2022) SCC OnLine NCLAT 1592 was relied by the Appellant, which was a case where 30 days' period expired on Saturday and Sunday, when the Court was closed. In paragraph 7, this Tribunal has noted Section 4 of the Limitation Act and Rule 3 of the NCLAT Rules and in paragraphs 7 to 10, held following: "7. Law is well settled that the period of limitation commences from the date when the Order is pronounced by the Tribunal. In this context, reference is made to the Judgement of Hon'ble Supreme Court in the matter of "V. Nagarajan Vs. SKS Ispat and Power Limited & Ors." [(2022) 2 SCC 244]. We thus have to first find out that when 30 days period of limitation which is the last date for filing the Appeal, expires. Order having been passed on 07th April, 2022, 30 days period is to expire on 07th May, 2022. 07th and 08th May, 2022 are the dates being Saturday and Sunday and on these days, the Court was closed hence last date for filing the Appeal was 09th May, 2022 as 07th and 08th May, 2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Privy Council in Maqbul Ahmad vs. Onkar Pratap Narain Singh - (1935) 41 LW 629, the above was a case where one of the objections, which was sought to be raised with regard to limitation in execution proceeding, was the period during which the Court was closed for vacation. When we look into the above judgment, it is clear that the Privy Council held that the time expired on 25th July, 1923, which day did not fall in the long vacation, thus as a matter of fact, the case was distinguishable on facts. It is useful to extract following discussion in the judgment of the Privy Council: "18. The second period is the period of the long vacation. In regard to that matter, the appellants seem to their Lordships to be in a position which is in the nature of a dilemma. It is to be noted that there is a marked distinction in form between Section 4 and Section 14. The language employed in Section 4 indicates that it has nothing to do with computing the prescribed period. What the section provides is that, where the period prescribed expires on a day when the Court is closed, notwithstanding that fact, the application may be made on the day that the Court reopens; so that there is nothing in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of limitation, whereas Section 4 has nothing to do with computation of the prescribed period. Be that as it may, in view of the specific Rule 3, which provides for exclusion of period during which the Court was closed on the last day of limitation and that days have to be excluded. The above judgment does not support the submission of the Respondent in the present case. 28. The judgment of the Hon'ble Supreme Court relied by learned Counsel for the Respondent is Amar Chand Inani vs. Union of India - (1973) 1 SCC 115. Reliance has been placed on paragraph 8, where following was laid down: "8. It was contended for the appellant that even if the Karnal Court was not the proper Court in which the suit should have been filed, the plaintiff was entitled to the benefit of Section 4 of the Act. Section 4 of the Act provides that where the period of limitation prescribed for any suit expires on a day when the Court is closed, the suit may be instituted on the day the court reopens. But, if the Karnal Court was not the proper court in which the suit should have been filed, the plaintiff would not be entitled to the benefit of Section 4. The decision of the Privy Council in Maqbul Ah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ink there is no substance in the argument, for, when the plaint was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words, the suit instituted in the trial court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court (see the decisions in Harachand Succaram Gandhy v. G.I.P. Rly. Co. [AIR 1928 Bom 421] Bimla Prasad Mukerji v. Lal Moni Devi [AIR 1926 Cal 355] and Ram Kishun v. Ashirbad. [ILR 29 Pat 699] Therefore, the presentation of the plaint in the Karnal Court on March 2, 1959, cannot be deemed to be a presentation of it on that day in the trial court." 30. The above two judgments, thus are clearly distinguishable and do not help the Respondent. Learned Counsel for the Respondent has placed much reliance on the judgment of Delhi High Court in Uttam Sucrotech vs. Union of India - (2011) SCC OnLine Del 85. In the above case, an Appeal was preferred on 91st day, which was beyond condonable period. Hence, the application for condonation of delay was rejected, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on October 28, 2006 which was a Saturday and, therefore, he was entitled to have the benefit of 28th and 29th October, 2006 being Saturday and Sunday and, therefore, the Commissioner of Appeals has erred in computing the period of limitation. To put it differently, it is urged by Mr. Gupta that the period has to be computed from the date the right to prefer an appeal had accrued but the Commissioner computed the said period fallaciously and expressed the view that the appeal was preferred on the 91st day and, therefore, he had no authority to condone the delay. To bolster his submissions he has placed reliance on the decisions rendered in Manohar Joshi v. Nitin Bhaurao Patil (1996) 1 SCC 169, Ramakant Mayekar v. Celine D' Silva (1996) 1 SCC 399 and Jindal Steel and Power Ltd. v. Ashoka Alloy Steel Ltd. (2006) 9 SCC 340." 32. Paragraph 24 of the judgment, notices the finding of the High Court. What High Court has held in the above judgment is that if the period of the last day of filing of an appeal comes in the midst of a vacation or a holiday, the said period would not get excluded but is extended by the applicability of Section 4 of the Limitation or Section 10 of the Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrectly computed the period of limitation and the Appeal was presented on 91st day, i.e. beyond condonable period. Hence, the said finding was affirmed. We have already noticed Rule 3 of the NCLAT rules, which provides for exclusion of the period, which falls on day when the office of the Appellate Tribunal is closed. Hence, exclusion of the period is specifically provided in the Rules. The judgment of the Delhi High Court, which had only considered Section 4 of the Limitation Act had no occasion to consider the rule 3 of the NCLAT Rules, 2016. Hence, by virtue of Rule 3 the said judgment of the High Court cannot be held to be applicable in the facts of the present case. 34. In view of the foregoing discussions, we are of the considered opinion that by virtue of Rule 3 of the NCLAT Rules, 2015, when last date for period of computation of limitation is falling on a day when office of the Tribunal is closed, the said period shall be excluded. Thus, in the present case, 30.08.2024, which was the 30th day for filing the Appeal and by giving two days for certified copy, 30th day will be 01.09.2024 and 31st August 2024 and 1st September, 2024 being Saturday and Sunday both the days have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appeal is accordingly condoned. Question No.4 Interlocutory Application No.6950 of 2024 37. In the Company Appeal (AT) (Ins.) No.1883 of 2024, the same dates are there for computation of the period. Impugned order was passed on 31.07.2024 and the Appeal was e-filed on 17.09.2024. There is no material on record to indicate that certified copy was applied by the Appellant. The Appellant is, thus, not entitled for any exclusion on the ground of certified copy, which exclusion was available for the Applicant in Company Appeal (AT) (Ins.) No.1862 of 2024. The 30 days period shall come to an end on 30.08.2024, the Appeal filed on 17.09.2024 was beyond condonable period. 30th August, 2024 was not a holiday, the Appeal having been filed on 17.09.2024, i.e. beyond 15 days condonable period, IA No.6950 of 2024 deserves to be rejected. In result IA No.6950 of 2024 is dismissed. 38. In view of the foregoing discussions, we allow IA No.6846 of 2024 filed in Company Appeal (AT) (Ins.) No.1862 of 2024. List Company Appeal (AT) (Ins.) No.1862 of 2024 'for admission' on 24th February, 2025. 39. IA No.6950 of 2024 is rejected. Consequently the Memo of Appeal i.e. Company Appeal (AT) (Ins.) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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