TaxTMI 
TaxTMI 
2021 (12) TMI 83
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....72/IBC/NCLT/MB/MAH/2017 and CP No. 1173/IBC/NCLT/MB/MAH/2017. All the Appeals have been filed on 20.09.2021. The office has reported delay and has also noticed that no Application for condonation of delay has been filed. The Appeals were heard. 2. We have heard Shri Shyam Babu, Learned Counsel for the Appellant in all these Appeals on 17.11.2021. 3. In the course of hearing, at the very outset, the attention of the Learned Counsel for the Appellant was pointed out to the office note that there is delay in Appeals. Learned Counsel for the Appellant submitted that there is no delay in the Appeals and the Appeals are within time. On 17.11.2021, following order was passed by this Bench:- "17.11.2021: Heard Shri Shyam Babu, Learned Counsel for the Appellant. Order which has been impugned in this Appeal was passed on 20.07.2018. The Office has reported about the delay. Learned Counsel for the Appellant submits that the copy of the order was applied on 27.07.2021 and received on 29.07.2021 and the Appeal was filed within time from the said date. Learned Counsel advances his submission that the Appeal is within time and he is also relying on Rule 50 of the NCLT Rules, 2016. 2. We hav....
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....first applied for first certified copy. These facts have been pleaded in paragraph 5 of the written submissions which is to the following effect:- "5. That in the second week of December 2018, the applicant came to know that the impugned order was uploaded and gone through impugned order and thereafter applied for certified paid copy of impugned order on 21.01.2019." 10. The Appellant claim to have applied for second time certified copy of the impugned order on 27.07.2021, which is specifically mentioned in paragraph 12:- "12. That the appellant again applied for a certified copy of impugned order on 27.07.2021. It is submitted that the appellant has filed the instant appeal on 31.08.2021." 11. In his written submissions, Appellant has also relied on the order of the Hon'ble Supreme Court dated 23.09.2021 passed in Miscellaneous Application No. 665 of 2021 in SMW(C) No. 3 of 2020. On submission of Learned Counsel for the Appellant and written submissions on record, we formulate following two questions to be answered in these Appeals:- (i) Whether on the strength of judgment of the Hon'ble Supreme Court in SMW(C) No. 3 of 2020, the Appellant is entitled for benefit of the sa....
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....efore 15.03.2020. Even by exclusion of period from 15.03.2020 till 02.10.2021 Appellant has yet to explain the delay/ limitation from 20.07.2018 till 14.03.2020. Thus, the judgment of the Hon'ble Supreme Court dated 23.09.2021 does not come to the aid of the Appellant in the present case. 14. Now coming to the Question No. (ii), we may first notice the relevant provisions of the 'I&B Code' governing the filing of the Appeal. Section 61 in Chapter VI of the 'I&B Code' provides for Appeals and Appellate Authority. Sub-section (1) and sub-section (2) of Section 61 which are relevant for the present case are as follows:- "61. Appeals and Appellate Authority. - (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 satisf....
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....is Rule 58 which is to the following effect:- "58. Effect of non-compliance.- Failure to comply with any requirement of these rules shall not invalidate any proceeding, merely by reason of such failure, unless the Tribunal is of the view that such failure has resulted in miscarriage of justice". 19. Thus, Rule 50 is a procedural Rule which oblige the Registry to send a certified copy of final order passed to the parties concerned free of cost. The Rule enjoins the duty of the Registry to send a certified copy of final order passed to the parties concerned free of cost. The question which has been raised before us is that since free of cost copy as required by Rule 50 has not been received by the Appellant, the period of limitation shall not begin to run and the Appeals filed by the Appellant on 20.09.2021 are well within time. When we read Section 61 of the 'I&B Code' with Rule 50 of the NCLT Rules, it cannot be said that limitation in filing of an Appeal under Section 61 shall not begin to run unless free of cost copy is sent by Registry and received by a party. Section 61 came for consideration before the Hon'ble Supreme Court in "Mobilox Innovations Private Limited vs. Kirusa....
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....iod of time and say that time has not started running because I have not received free of cost copy. In this reference, we may notice one judgment of the Hon'ble Supreme Court with regard to delivery of the free of cost copy i.e. (2013) 3 SCC 594 "State represented by Inspector of Police, Chennai vs. N.S. Gnaneswaran". Sub-section (2) of Section 154 of the CrPC provides:- "154. Information in cognizable cases.- ..........(2) A copy of the information as recorded under sub- section (1) shall be given forthwith, free of cost, to the informant." 22. A proceeding filed before High Court for quashing the first information report on the ground that there is breach of sub-section (2) of Section 154 since the free copy has not been supplied to the Informant, the High Court held that requirement in sub-section (2) of Section 154 of CrPC for copy of information recorded was mandatory and High Court held that FIR has non est on the aforesaid ground. In an Appeal filed by the State, the Judgment of the High Court was reversed. In paragraph 22 the Hon'ble Supreme Court laid down following:- "22. The law on this issue can be summarised that in order to declare a provision mandatory, the tes....
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....f a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded." 24. By virtue of sub-section (2) of Section 12, in computing the period of limitation for an appeal, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the order of Appeal, is to be excluded. Rule 50 of the NCLT Rules, 2016 cannot be read to be a Rule governing the limitation. In event, the argument of the Appellant is to be accepted that limitation to file an Appeal under Section 61 of the 'I&B Code' shall commence only after receipt of the free of cost copy, we have to read certain additional words in Section 61 (2) i.e. "Appeal shall be filed within 30 days from receipt of the free of cost copy by a party". It is well settled Rule of construction that statute has to be interpreted as it exists and addition of any word is not permissible. 25. There is one more aspect which needs to be noticed as noted above in written submissions. The Appellant has categorically stated that he came to know about the impugned order in second week of December 2018 and he applied for certif....
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....t of the Hon'ble Supreme Court referred to Section 421(3) of the Companies Act r/w Rule 50, what has been held by the Hon'ble Supreme Court in above paragraphs interpreting Section 421(3) read with Rule 50 is a law of land and binding on all authorities under Article 141 of the Constitution of India. In the above case, certified copy was applied by the Appellant of that case within 27 days of pronouncement of the judgment. 28. The Hon'ble Supreme Court in a recent judgment delivered on 22.10.2021- Civil Appeal No. 3327 of 2020 "V Nagarajan vs. SKS Ispat and Power Ltd. & Ors." had occasion to consider Section 61 of the 'I&B Code' as well as Rule 50 of the NCLT Rules, 2016. In the above case also, the Appeal of the Appellant was dismissed as barred by limitation. Submission was also pressed before the Hon'ble Supreme Court that in view of Rule 50, free copy of the order is to be provided to the party and the clock of limitation under Section 61 would run from the date free copy is issued to a party. It was submitted before the Hon'ble Supreme Court that Sagufa Ahmed's case (supra) covers the situation. The Hon'ble Supreme Court considered the relevant provisions of the 'I&B Code' an....
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.... above factual position, we do not want to hold against the appellants, the fact that they waited from 25-10- 2019 (the date of the order [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., 2019 SCC OnLine NCLT 749] of NCLT) up to 21-11-2019, to make a copy application. But at least from 19-12-2019, the date on which a certified copy was admittedly received by the counsel for the appellants, the period of limitation cannot be stopped from running. From 19-12-2019, the date on which the counsel for the appellants received the copy of the order, the appellants had a period of 45 days to file an appeal. This period expired on 2-2-2020." Therefore in a field which is not covered by a special law which invests the NCLT with jurisdiction, the general principle for the computation of limitation for filing an appeal against an order of the NCLT is governed by the statutory mandate of Section 420(3) of the Companies Act read with Rule 50 of the NCLT Rules, which enables a party to compute limitation from the date of receipt of the statutorily mandated free certified copy, without having to file its own application. However, the decision of this Court in Sagufa Ahmed (surpa) clarifies ....
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....as overriding effect. Sections 61(1) and (2) of the IBC consciously omit the requirement of limitation being computed from when the "order is made available to the aggrieved party", in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of the IBC, the aggrieved party is expected to exercise due diligence and apply for a certified copy upon pronouncement of the order it seeks to assail, in consonance with the requirements of Rule 22(2) of the NCLAT Rules. Section 12(2) of the Limitation Act allows for an exclusion of the time requisite for obtaining a copy of the decree or order appealed against. It is not open to a person aggrieved by an order under the IBC to await the receipt of a free certified copy under Section 420(3) of the Companies Act 2013 read with Rule 50 of the NCLT and prevent limitation from running. Accepting such a construction will upset the timely framework of the IBC. The litigant has to file its appeal within thirty days, which can be extended up to a period of fifteen days, and no more, upon showing sufficient cause. A sleight of interpretation of procedural rules cannot be used to defeat the substantive objective of a legisla....