2022 (10) TMI 436 - AT - Insolvency and Bankruptcy

Appeals Deemed Timely Filed with Exclusion of Time Requested

AJR Infra and Tolling Ltd. Versus Sutanu Sinha, Resolution Professional Patna High way Projects Ltd. & Ors. And Gammon Engineers and Contractors Pvt. Ltd Versus Sutanu Sinha & Ors.

The Tribunal allowed the exclusion of time for obtaining a certified copy of the order under Section 12(2) of the Limitation Act, 1963. The Appeals were ... Application for Condonation of Delay in filing the Appeal - whether the Applicant(s) are entitled for exclusion of period requisite for obtaining the certified copy of the order with effect from 12.05.2022 to 14.06.2022 or the Applicant(s) are entitled to exclude the time only from 09.06.2022 to 14.06.2022, when balance court fee for obtaining certified copy was paid? - whether exclusion of period for obtaining of certified copy shall be from 12.05.2022 to 14.06.2022 or 09.06.2022 to 14.06.2022? - HELD THAT:- Section 149 contemplate an order of the Court for extending the time, whereas in NCLT Rules, 2016, no order is contemplated by the Court for extension of time and the deficiencies of court fee and the defects in the application is to be cured as per Rule 28 within seven days from the date of pointing out of the defects or within a further period as allowed by the Rules. When the defects are removed, the presentation of the Application has to be treated from the date of initial presentation and presentation of the Application shall not be treated from the date when defects were removed. The Applicant(s) were entitled to exclude the period from 12.05.2022 to 14.06.2022, which was time requisite for obtaining certified copy of the order dated 10.05.2022. If the time requisite is excluded, limitation of 30 days’ time for filing the Appeal shall be till July, 12.07.2022 - appeal is filed within the period of limitation and Appeal Nos. 920 and 922 of 2022 were filed within 15 days beyond the period of 30 days. Let the Appeal(s) be listed for admission on 12.10.2022. Issues Involved:1. Delay in filing the Appeals.2. Application for Condonation of Delay.3. Exclusion of time requisite for obtaining a certified copy of the order under Section 12(2) of the Limitation Act, 1963.4. Interpretation of NCLT Rules, 2016 regarding defective applications and payment of court fees.Detailed Analysis:1. Delay in filing the Appeals:The Appeals were filed against the judgment/order dated 10.05.2022 by the National Company Law Tribunal (NCLT), Principal Bench, New Delhi. The Appeals were presented on different dates: Company Appeal (AT) (Insolvency) Nos. 920 and 922 of 2022 on 13.07.2022, and Company Appeal (AT) (Insolvency) No.1072 of 2022 on 06.07.2022. The Appellants sought condonation of delay, claiming the delay was due to the time taken to obtain the certified copy of the order.2. Application for Condonation of Delay:The Appellants argued that the period from 12.05.2022 to 14.06.2022 should be excluded as 'time requisite for obtaining the certified copy' under Section 12(2) of the Limitation Act, 1963. They contended that the order was pronounced virtually on 10.05.2022 but uploaded only on 31.05.2022. The Appellants paid the balance court fee on 09.06.2022, and the certified copy was delivered on 14.06.2022.3. Exclusion of time requisite for obtaining a certified copy of the order under Section 12(2) of the Limitation Act, 1963:The Respondents argued that the Appeals were barred by time, citing the Supreme Court's judgment in V. Nagarajan vs. SKS Ispat and Power Limited & Ors. (2022) 2 SCC 244, which held that the limitation period starts from the date of the order's pronouncement, not from its uploading. They further argued that the Appellants were not entitled to exclude the period from 12.05.2022 to 09.06.2022 due to the deficient court fee.The Tribunal referred to Section 12(2) of the Limitation Act, 1963, which allows the exclusion of time requisite for obtaining a copy of the order. The Tribunal also considered Rule 28 of the NCLT Rules, 2016, which mandates that defective applications must be rectified within seven days of notification. The Tribunal concluded that the application for the certified copy, though initially deficient, should be treated as filed on 12.05.2022, and the period from 12.05.2022 to 14.06.2022 should be excluded.4. Interpretation of NCLT Rules, 2016 regarding defective applications and payment of court fees:The Tribunal examined the NCLT Rules, 2016, particularly Rule 28, which deals with the scrutiny of petitions and applications. The Tribunal noted that if an application is found defective, the applicant must be notified and given seven days to rectify the defect. In this case, the deficient court fee was paid on 09.06.2022, and the certified copy was prepared on 14.06.2022.The Tribunal also referred to previous judgments, including the full Bench judgment of the Kerala High Court in Francis vs. Deputy Registrar, which held that the time taken to produce stamp papers for obtaining certified copies should be excluded under Section 12(2) of the Limitation Act, 1963.Conclusion:The Tribunal concluded that the Appellants were entitled to exclude the period from 12.05.2022 to 14.06.2022 as time requisite for obtaining the certified copy. Consequently, the limitation period for filing the Appeals was extended. Appeal No.1072 of 2022 was filed within the limitation period, and the short delay in filing Appeal Nos. 920 and 922 of 2022 was condoned under Section 61(2) & proviso of the Code. The Appeals were listed for admission on 12.10.2022.