2024 (6) TMI 589 - AT - Insolvency and Bankruptcy

Bank appeal dismissed for filing with free copy instead of certified paid copy under Rule 22(2) NCLAT Rules 2016

State Bank of India Versus India Power Corporation Ltd.

NCLAT dismissed the appeal filed by a bank challenging an order from the adjudicating authority. The tribunal found the appeal non-maintainable as it was ... Condonation of Delay in filing a appeal - Right to receive a Free Copy of the Impugned Order - Petitioner / Appellant / Bank, has not even applied for a Certified Copy (Paid Copy) of the Impugned Order - exemption as per Rule 14 of the NCLAT Rules, 2016 - time limitation - sufficient cause for delay or not. Time Limitation - HELD THAT:- It cannot be gainsaid that the Law of Limitation, may affect a Person, but, it cannot be forgotten, that a Statutory Provision, may cause an inconvenience or hardship, to the concerned Person / Litigant, but, this Appellate Tribunal, is left with no option, but, to adhere, to the Provisions of the I & B Code, 2016, Rules and Regulations, in true letter and spirit, without carving out any exception. In reality, the Law of Limitation, bars the remedy, but, the Right, is not extinguished. It is a settled `Law’ that a `Tribunal’ / `Appellate Tribunal’, is not to pass an `Order’, in a given `Legal Proceeding’, before it, as `opposed to Law’. When the I & B Code, 2016, the `Tribunal’ and `Appellate Tribunal’, Rules 2016, are quite clear, without any `ambiguity’ or `incongruity’, etc., the same will have to be pressed into service and applied, overriding `Equities’, despite, `Unpalatable Consequences’ flowing thereto. It cannot be brushed aside that the Petitioner / Appellant / Bank (Financial Creditor), has failed to `apply’ for a `Certified Copy’ (`Paid Copy’) of the `Impugned Order’, from the `Adjudicating Authority’ / `Tribunal’, prior to the `Expiry’ of `Limitation Period’ on 29.11.2023. The Filing of the instant Comp. App by the Petitioner / Appellant / Bank (Financial Creditor), before this `Appellate Tribunal’, with the aid of `Free of Cost Copy’ (`Certified True Copy’ of the `Impugned Order’, duly signed by the `Officer’ concerned of the `Adjudicating Authority’ / `Tribunal’), cannot be a `Substitute’ for `every Appeal’, to be `accompanied’, by the `Certified Copy’ (`Paid Copy’) of the `Impugned Order’, as opined by this `Tribunal’, in the teeth of Rule 22(2) of the NCLAT Rules, 2016. Viewed in that perspective, the Filing of the instant Comp. App, accompanied by the `Free of Cost Copy’ of the `Impugned Order’ (`Certified True Copy’), is per se `not Maintainable’, in the `eye of Law’, as held by this `Tribunal’. Sufficient cause for delay or not - HELD THAT:- In the instant case on hand, the reasons assigned, on behalf of the Petitioner / Appellant / Bank (Financial Creditor) to the effect that, during the said period, the Petitioner / Appellant / Bank (Financial Creditor), has `sought `Legal Advise’, from their `Legal Counsels’, for filing this Appeal, however,` due to occurrence of major Festivals’, including `Diwali’, there was a delay, in preparing and finalising the present `Appeal’, etc., are in `no manner plausible reasons / explanations’, to come within the umbrage of the term `Sufficient Cause’, and the same is only a `ploy’, praying for `Condoning the Delay’ in question, for preferring the `Appeal’, as held by this `Tribunal’. This `Tribunal’, taking note of the cumulative attendant facts and circumstances of the present case, in an `integral’ manner, comes to a consequent conclusion, that the Petitioner / Appellant / Bank (Financial Creditor), has not made out any `Sufficient Cause’, for the purpose of `Condoning the delay of 3 days’, in preferring the instant `Company Appeal’. Appeal dismissed. Issues Involved:1. Whether the free copy provided by NCLT qualifies as a Certified Copy for the purpose of Rule 22(2) of NCLAT Rules, 2016.2. Whether the period between the pronouncement of the order and the supply of the free copy should be excluded as per Section 12(2) of the Limitation Act, 1963.3. Whether applying for a Certified Copy is mandatory for an Appeal filed u/s 61(2) of IBC, 2016.4. Whether the reasons for the delay of 3 days beyond the 30-day limitation period constitute 'Sufficient Cause' for condonation of delay.Summary:Issue 1: Certified Copy QualificationThe Tribunal examined whether the free copy provided by NCLT under Rule 50 of NCLT Rules qualifies as a Certified Copy for Rule 22(2) of NCLAT Rules, 2016. It was determined that the free copy, certified by the NCLT Registry, meets the requirements of a Certified Copy under Section 76 of the Indian Evidence Act, 1872. The Tribunal noted that both paid and free certified copies are valid, and no distinction should be made between them.Issue 2: Exclusion of Time PeriodThe Tribunal addressed whether the period between the order's pronouncement and the supply of the free copy should be excluded under Section 12(2) of the Limitation Act, 1963. It was held that since the party did not apply for a Certified Copy, they did not show due diligence, and thus, the time taken to obtain the free copy cannot be excluded from the limitation period. The limitation period started from the date of the order's pronouncement.Issue 3: Mandatory Application for Certified CopyThe Tribunal discussed whether applying for a Certified Copy is mandatory for an Appeal filed u/s 61(2) of IBC, 2016. It was held that Rule 22(2) of NCLAT Rules, 2016 mandates a Certified Copy to accompany the Appeal. However, both paid and free certified copies are valid under Rule 50 of NCLT Rules. The Tribunal noted that applying for a Certified Copy within the limitation period reflects the party's diligence, but in this case, the free certified copy provided was valid for filing the appeal.Issue 4: Sufficient Cause for DelayThe Tribunal evaluated whether the reasons for the delay of 3 days beyond the 30-day limitation period constituted 'Sufficient Cause' for condonation of delay. The reasons cited included difficulty in contacting counsels during major festivals and the voluminous nature of the appeal documentation. The Tribunal found these reasons to be sufficient cause for condoning the delay of 3 days, referencing principles laid down by the Supreme Court and other decisions by NCLAT.Conclusion:The Tribunal concluded that the free certified copy provided by NCLT is valid for filing the appeal, but the time taken to obtain it cannot be excluded from the limitation period if the party did not apply for a certified copy. The reasons for the delay were found to constitute sufficient cause, and therefore, the IA No. 158/2024 for condonation of delay was allowed. Consequently, the main appeal was directed to be listed for admission.