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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 ..... the period of limitation. It is held 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. Whether for computing the 30 days period for filing the Appeal under Section 61, the limitation of 30 days period expiring on a day on which Tribunal is closed for, the period shall be excluded upto the period on which Tribunal re-opens, for computation of 30 days period for filing of the Appeal? - HELD THAT:- Rule 3 of the NCLAT Rules specifically provides that 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. On reading Rule 3 of the NCLAT Rules, it clearly provides that when the last date 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. In the facts of the present case, the order was passed on 31.07.2024 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Applicant has made out sufficient cause for condonation of the delay. The delay in filing the Appeal is accordingly condoned. Whether the delay in filing is within condonable period and sufficient cause has been made out to condone the delay? - HELD THAT:- 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. Conclusion - The 15-day condonable period under Section 61(2) of the IBC cannot be extended by Rule 3 of the NCLAT Rules or Section 4 of the Limitation Act if it ends on a day when the Tribunal is closed. The application for condonation of delay is allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.08.2024 and the same was received on 08.08.2024. After paragraph 8, paragraph 8A be inserted to the following effect: "However, since 14.09.2024 and 15.09.2024 were Saturday and Sunday respectively, and 16.09.2024 was a bank holiday, as per Rule 3 of the National Company Law Appellate Tribunal Rules, 2016 ("NCLAT Rules") , the said 3 (three) days ought to be excluded in computation of the limitation for the purposes of the present appeal, which came to be filed on 17.09.2024, the next day after the registry of this Hon'ble Tribunal reopened. I crave leave to refer to and rely upon the additional material during the course of the hearing including the said NCLAT Rules" IA No.7409 of 2024 praying for amendment in IA No.6846 of 2024 is allowed. The facts of the IA No.6846 of 2024 as amended needs to be noted. (iii) The order impugned was passed on 31.07.2024. Certified copy was applied on 07.08.2024 and certified copy was received on 08.08.2024. The Appellant's case in the application is that the limitation of 30 days will expire on 30.08.2024. Thereafter 15 days period will expire on 16.09.2024, after excluding the period taken for obtaining certified copy and 15.09.2024 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 3, the period of 15 days, which is a condonable period, this Tribunal can condone the delay and the delay has also to be treated to be within period covered under Rule 3. Hence, 15.09.2024 and 16.09.2024 also need to be excluded and thus, the Appeal filed on 17.09.2024 has to be treated within the condonable period. It is further submitted that by excluding two days for obtaining certified copy, 30 days period will expire on 01.09.2024, both 31.08.2024 and 01.09.2024 being Saturday and Sunday, 15 days shall commence on 02.09.2024. 6. Shri Abhijeet Sinha, learned Senior Counsel appearing for the Appellant in Company Appeal (AT) (Ins.) No.1883 of 2024 also supports the submission of the Appellant in BSEL Ltd. and submits that Rule 3 of NCLAT Rules, 2016, which is applicable in the present case, has not been adverted to by this tribunal in Darwin Platform's case, which need to be applied and the period of 15 days having fallen on holiday, the Appeal could have been filed only on re-opening. Shri Sinha submits that Appeal having been filed within 45 days from the date of the impugned order, this Tribunal has requisite jurisdiction to condone the delay of 15 days in filing of the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the Appeal under Section 61, the limitation of 30 days period expiring on a day on which Tribunal is closed for, the period shall be excluded upto the period on which Tribunal re-opens, for computation of 30 days period for filing of the Appeal. (3) Whether the delay in filing IA 6846 of 2024 in Company Appeal (AT) (Ins.) No.1862 of 2024 is within condonable period and sufficient cause has been made out to condone the delay. (4) Whether the delay in filing IA 6950 of 2024 in Company Appeal (AT) (Ins.) No.1883 of 2024 is within condonable period and sufficient cause has been made out to condone the delay. Question No.1 11. Section 61, sub-section (2) provides for limitation for filing of the Appeal, is as follows: "61(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." 12. Section 4 of the Limitation Act, 1963 provides as follows: "4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsection (2) proviso, cannot be said to be prescribed period for filing an Appeal. The power to condone the delay upto 15 days, given by proviso of sub-section (2) of Section 61, cannot be held to be a period prescribed as referred to in the 1st sentence of Rule 3. The import of the Rule can further be deciphered from expression "for doing any act". For doing any act, is referable to first part of the Rule 3, thus, where a period is prescribed by the Act and these rules or under any other law or is fixed by the Appellate Tribunal for doing any act. The expression 'for doing any act' is referrable to expression 'fixed by the Appellate Tribunal for dong any act'. The condonable period of 15 days provided under Section 61, sub-section (2) cannot be considered to be covered by expression "for doing any act". The power to condone the delay of 15 days is the power vested in the Appellate Tribunal and there is no applicability of Rule 3 with regard to power of condonation vested in this Appellate tribunal for condonation of delay of 15 days. The submission of the Appellant that by virtue of Rule 3, in event 15th day is falling on a day, on which the Tribunal is closed, the said period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtended and the appellants get the benefit of that period over and above the cap of thirty days as provided in Section 34(3), then the view of the High Court and the District Judge cannot be sustained. But this would depend on the applicability of Section 4 of the 1963 Act. 11. The question, therefore, that falls for our determination is whether the appellants are entitled to extension of time under Section 4 of the 1963 Act in the above facts? 12. Section 4 of the 1963 Act reads as under: "4. Expiry of prescribed period when court is closed.- Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Explanation.-A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day." The above section enables a party to institute a suit, prefer an appeal or make an application on the day the court reopens where the prescribed period for any suit, appeal or application expires on the day when the court is closed. 13. The cruci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itral award was passed against the appellant under the provisions of the Arbitration Act on 24-8-2016. As per Section 34(3) of the Arbitration Act, 90 days are prescribed for preferring an application under Section 34 of the Arbitration Act against the arbitral award. However, the said period was extendable by a further period of 30 days in terms of the proviso to Section 34(3) of the Act, 2016. In the present case, the period of 90 days prescribed under Section 34(3) of the Arbitration Act expired on 24-11-2016. The appellant was entitled to a further extended period of 30 days from 23-11- 2016 onwards in terms of the proviso to Section 34(3) which was up to 24-12-2016. 4. The trial courts were closed on account of winter/Christmas vacations from 19-12-2016 to 1-1-2017. However, it so happened that extendable/condonable period of 30 days as contemplated in the proviso to Section 34(3) expired on 24-12- 2016 on which day the trial court was closed on account of winter/Christmas vacation. The appellant herein filed the application under Section 34 of the Arbitration Act, challenging the award passed by the Arbitral Tribunal. The appellant also filed IA No. 1 for condonation of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the Arbitral Tribunal: Provided that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter." 48. The relevant provisions of the Limitation Act and the General Clauses Act, 1897 are also required to be referred to which are as under: "2. (j) "period of limitation" [which] means the period of limitation prescribed for any suit, appeal or application by the Schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of this Act; *** 4. Expiry of prescribed period when court is closed.-Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Explanation.-A court shall be deemed to be closed on any day within the meaning of this section if during any part of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable on the Arbitration and Conciliation Act and Section 10 of the General Clauses Act shall not be applicable by virtue of Section 10(1). In paragraph 57 to 58, following has been laid down: "57. Now, so far as reliance placed upon Section 10 of the General Clauses Act, 1897 on behalf of the appellant is concerned, at the outset it is required to be noted that such a contention is untenable in light of the proviso to Section 10 of the General Clauses Act, 1897, which specifically excludes the application of Section 10 of the General Clauses Act, 1897 to any act or proceeding to which the Limitation Act, 1877 applies. Reference to the 1877 Act will now have to be read as reference to the Limitation Act, 1963 in view of Section 8 of the General Clauses Act, 1897. 58. Therefore, in light of the application of the Limitation Act, 1963 to the proceedings under the Arbitration Act and when Section 10 of the General Clauses Act, 1897 specifically excludes the applicability of Section 10 to any act or proceeding to which Limitation Act, 1963 applies and in light of the definition of "period of limitation" as defined under Section 2(j) read with Section 4 of the Limitation Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant that judgment of this Tribunal in State Bank of India vs. Darwin Platform Infrastructure Ltd. & Ors. has looked into only Section 4 of the Limitation Act, Section 238 of the IBC and has held that Limitation Act is applicable. There is no indication in provisions of the IBC that there is any exclusion of Section 4 to 14 of Limitation Act to the IBC. Thus, Rule 3 contains nothing but principles enumerated in Section 4 of the Limitation Act and as we have already noticed the provisions of Rule 3 of NCLAT Rules, 2016 and has held that the said Rule 3 also refers to the period of limitation and shall not cover 15 days period, which is a period condonable conferred by Section 61, sub-section (2). 20. Learned Counsel for the Appellant further contended that judgment in State Bank of India vs. Darwin Platform Infrastructure Ltd. & Ors. can be said to be an obiter since in view of the answer to Question No.i, there was no occasion to consider Question No.ii. The learned Counsel for the Respondent has rightly contended that the judgment of State Bank of India vs. Darwin Platform Infrastructure Ltd. & Ors. contains both the ratio, i.e. ratio laid down while answering Question No.i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but that view is not open to us in view of the decision of the Court of Appeal in Folkes v. R. [Folkes v. R., (1923) 1 KB 282 (CA)] In that case two reasons were given by all the members of the Court of Appeal for their decision and we are not entitled to pick out the first reason as the ratio decidendi and neglect the second, or to pick out the second reason as the ratio decidendi and neglect the first; we must take both as forming the ground of the judgment." So, also, in Cheater v. Cater [Cheater v. Cater, (1918) 1 KB 247 (CA)] Pickford, L.J., after citing a passage from the judgment of Mellish, L.J., in Erskine v. Adeane [Erskine v. Adeane, (1873) LR 8 Ch App 756] , said : (Cheater case [Cheater v. Cater, (1918) 1 KB 247 (CA)] , KB p. 252) "... That is a distinct statement of the law and not a dictum. It is the second ground given by the Lord Justice for his judgment. If a Judge states two grounds for his judgment and bases his decision upon both, neither of those grounds is a dictum." The said judgment has been followed in State of Gujarat v. Manoharsinhji Pradyumansinhji Jadeja [State of Gujarat v. Manoharsinhji Pradyumansinhji Jadeja, (2013) 2 SCC 300 : (2013) 1 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closed, the said day need to be excluded. The learned Counsel for the Respondent also in support of his submission has relied on judgment of Privy Council in Maqbul Ahmad vs. Onkar Pratap Narain Singh - (1935) 41 LW 629; Amar Chand Inani vs. Union of India - (1973) 1 SCC 115 and judgment of the Delhi High Court in Uttam Sucrotech vs. Union of India - (2011) SCC OnLine Del 85. 24. We have extracted the provision of Section 4 of the Limitation Act, which contains heading "Expiry of prescribed period when court is closed". The provision provides that where the prescribed period for any suit or appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the date when the court re-opens. Rule 3 of the NCLAT Rules specifically provides that 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. When we read Rule 3 of the NCLAT Rules, it clearly provides that when the last date expir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day." 9. Rule 3 of the NCLAT Rules, 2016 is as follows: "3. Computation of time period.- Where a period is prescribed by the Act and these rules or 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" 10. 09th May, 2022 being the last day when 30 days period of limitation came to an end and the Appeal having been e-filed on 23rd May, 2022 whether the delay is 15 days or more, is question to be answered. 09th May, 2022 being the last date of limitation, 10th May, 2022 will be the first day from which date 15th Days period has to be reckoned. 15th Day from 10th May, 2022 will be 24th May, 2022, the Appeal being e-filed on 23rd May, 2022, the delay has to be treated to be filed within the period of 15 days from the expiry of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to be added to what is primarily the prescribed period ; that is to say, if the prescribed period is three years, and twenty days ought to be excluded in order to determine when the prescribed period expires, twenty days have to be added to the three years, and the date of the expiration of the prescribed period is thus ascertained. 19. That being so, the appellants appear to be in this difficulty. They have been allowed, and (as their Lordships think) properly allowed, the period from June 20, 1923, to August 6, 1923. At page 33 of the record, this passage in the judgment of the High Court appears : "Even, therefore, if the three years and forty-eight days are counted from that date, the time expired some time about July 25, 1923. That did not fall within the long vacation. It therefore follows that the plaintiffs are not entitled to the benefit of Section 4." 20. That view of the way to calculate the prescribed period seems to their Lordships to be correct; but, even if it were not correct and it were necessary to turn to Section 4, the language of Section 4 is such that it seems to their Lordships to be impossible to apply it to a case like the present. What it pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29. In the above case, the question was for extending the benefit of Section 4 of the Limitation Act. The Court held that the presentation of the suit was not in the Court, hence on the said ground, the benefit of Section 4 was not acceptable. It is useful to extract paragraph 9 of the judgment, which is as follows : "9. If the plaintiff had filed the suit in the trial court, on March 2, 1950, then certainly the suit would have been within time under Section 4, as that was the proper Court in which the suit should have been filed. As the Karnal Court had no jurisdiction to entertain the plaint, it was not the proper Court. The fact that the plaintiff would be entitled to take advantage of the Provisions of Section 14 of the Act would not, in any way, affect the question whether the suit was filed within the time as provided in Section 4 in the Karnal Court. Section 14 of the Act only provided for the exclusion of the time during which the plaintiff has been prosecuting with due diligence another civil proceeding against the defendant, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Central Excise Rules, 2002. It had executed bond with the respondents for exporting the goods by purchasing manufactured excisable goods duty-free on the basis of CT-1 issued from time to time by the respondents. It had submitted necessary documents on July 28, 2004 and October 19, 2004 which had been scrutinised by the respondents and thereafter show-cause notice No. 6 dated July 25, 2005 and show-cause notice No. 9 dated September 30, 2005 had been served on the petitioner-company. The petitioner explained all queries which were made in the aforesaid show-cause notices in its replies dated August 24, 2005 and October 4, 2005 and made a prayer to the respondents to drop the proceedings and to withdraw the show-cause notices. 3. As put forth, the adjudicator, namely, the Assistant Commissioner of Central Excise, dealt with the show-cause notices jointly and issued an order dated August 22, 2006 making a demand of Rs. 3,29,819 in terms of the provisions of section 11AC of the Act. 4. The aforesaid composite order passed on August 22, 2006 was received by the petitioner on August 29, 2006 against which the petitioner preferred an appeal on November 28, 2006. The second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to present the same on the day when the court reopens. It is also evincible that where section 4 of the Limitation Act is not applicable, section 10 of the General Clauses Act comes into aid by extending the period to the next day of reopening of the court. It is also demonstrable that the said provisions do not entitle a person to add the days on which the court is closed to the statutory period. To put it differently, 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 Act or section 10 of the General Clauses Act which enables the affected party to prefer the appeal on the date when the court or the office reopens. The submission of Mr. Gupta, learned counsel for the petitioner is that as the limitation period of 60 days expired on October 28, 2006 which was a Saturday, the petitioner was entitled to the benefit of 28th and 29th October, 2006 being saturday and sunday and, thereafter, the further period of 30 days would commence and, therefore, the appeal was presented within the period of limitation. The said proposition, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of delay is within the condonable period, is the first question to consider. The order was passed on 31.07.2024. The limitation shall commence from 01.08.2024 and 30 days would expire on 01.09.2024, by giving benefit of two days for certified copy. 31st August, 2024 being Saturday and 01.09.2024 being Sunday, 02.09.2024 will be the date on which limitation shall expire. We have further noticed that application for certified copy was submitted on 07.08.2024 and copy was delivered on 08.08.2024. Hence, two days are to be excluded while computing 30 days. By excluding two days, the 30 days period for filing the Appeal shall be expiring on 02.09.2024 and the Appeal having been filed on 17.09.2024, cannot be held to be beyond condonable period. The computation of 15 days shall commence from 02.09.2024 and 15th day will expire on 17.09.2024, on which date the Appeal was filed. Thus, the Appeal was filed within condonable period of 15 days. We have also held that 30 days period when expiring on a day when the Court is closed, the said period also be excluded while computing the period of limitation. Reasons have been given by the Appellant in the application for explaining the delay o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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