AI Drafter - (New and Powerful) 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2022 (9) TMI 219
X X X X Extracts X X X X
X X X X Extracts X X X X
....s. Ishita Mangla, Advocates For the Respondents : Ms. Anshula Grover, Ms. Nitika Grover and Mr. Mayan Prasad, Advocates For the Appellant : Mr. Abhijeet Sinha, Mr. Anand Varma, Mr. Aditya Shukla and Ms. Apoorva Pandey, Advocates. For the Respondents: Mr. Sumesh Dhawan, Ms. Vatsala Kak and Mr. Shaurya Shyam, Advocates. For the Appellant: Ms. Hima Lawrence and Mr. Chitwan Sharma, Advocates For the Respondents : Mr. Alok Dhir and Mr. Karan Batura, Advocates For the Appellant : Mr. Sanjib Kumar Mohanty, Mr. Akhilesh Sharma, Mr. Subesh Kumar Sahoo and Mr. Akash Sharmaand Ms. P.S. Chandralekha, Advocates For the Respondents: Mr. Aditya Gauri and Mr. Amar Vivek, Advocates for R-1 ORDER ASHOK BHUSHAN , J. This larger bench has been constituted to answer following two questions referred by a three-member bench of this Tribunal by its order dated 12.08.2022: (a) Whether the law laid down by this Tribunal in "Mr. Jitendra Virmani Vs. MRO-TEK Realty Ltd. & Ors" and three Member Bench Judgement in "Arul Muthu Kumaara Samy Vs. Registrar of Companies" that when the defect in appeal is cured and the Appeal is refiled before the Appellate Tribunal beyond seven....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and in Company Appeal (AT) (Insolvency) No. 914 of 2022 refiling delay is 105 days. 5. Learned counsel for the Appellant in support of their 'Application for Condonation of Refiling Delay' submits that as per Rule 26 of NCLAT Rules, 2016, the Registrar is fully empowered to pass appropriate orders if there is failure in rectifying the defects within the 7 days. The scheme of Rule 26 does not indicate that if the defects are not removed within seven days, the re-presentation of the appeal after removal of defects beyond 7 days shall be treated as fresh appeal. The first presentation of the appeal is the date which is to be reckoned for the purpose of computation of limitation in filing of appeal and the re-presentation of the appeal has no bearing on the question of computation of limitation. The judgments of this Tribunal in "Mr. Jitendra Virmani Vs. MRO-TEK Realty Ltd. & Ors" and "Arul Muthu Kumaara Samy Vs. Register of Companies" holding that when the defects in the appeal is cured after 7 days and the appeal is represented, the appeal shall be treated as a fresh appeal does not lay down correct law. Learned counsel for the Appellant further submits that filing of appeal and r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ies Act, 2013 for carrying out the provision of the Companies Act, 2013. Part III of the Rules deals with 'Institution of Appeals - Procedure'. Rule 22 deals with 'Presentation of Appeal'. Rule 22 is as follows: "22. Presentation of appeal.- (1) Every appeal shall be presented in Form NCLAT-1 in triplicate by the appellant or petitioner or applicant or respondent, as the case may be, in person or by his duly authorised representative duly appointed in this behalf in the prescribed form with stipulated fee at the filing counter and non-compliance of this may constitute a valid ground to refuse to entertain the same. (2) Every appeal shall be accompanied by a certified copy of the impugned order. (3) All documents filed in the Appellate Tribunal shall be accompanied by an index in triplicate containing their details and the amount of fee paid thereon. (4) Sufficient number of copies of the appeal or petition or application shall also be filed for service on the opposite party as prescribed. (5) In the pending matters, all other applications shall be presented after serving copies thereof in advance on the opposite side or his advocate or a....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... extend the time for compliance. The power under Rule 26(3) is to be exercised after scrutiny under Sub-rule (2) when a defect is pointed out to the Appellant and there is failure to comply within 7 days from the date of return. Sub-rule (2) and (3) does not indicate that any penal consequences have been provided for removal of defects after 7 days. When specific power is there under Sub-rule (3) of Rule 26 to extend the time for compliance, the period of 7 days cannot be said to be mandatory period. The scheme of Rule 26 also does not indicate that when the appeal is re-presented after removal of the defects after 7 days, the appeal is to be treated as an appeal filed afresh. 11. In respect of the above submissions, one of the Judgements which have been relied by the Learned Counsel for the Respondent is two Member Judgement in the matter of "Mr. Jitendra Virmani" (supra). In the above case, the Appeal was filed against the Order dated 05th January, 2017, Copy of the Order was served on the Appellant on 07th January, 2017 however the Appellant could file the Appeal (defective) only on 31st March, 2017. On 31st March, 2017, the Registry pointed out the defects which were noticed....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the appeal after 7 days, as per clause (4) of Rule 26, the appellant would have filed a fresh appeal with fresh court fee with separate sets of paper book, separate affidavit, separate vakalatnama which would be disadvantages to the appellants. ..... 20. Appeal was filed on 31stMarch 2017, and the defect was to be removed within 7 days i.e. by 7th April 2017. Therefore, no extension of time could have been granted even by the Registrar to remove the defects particularly when the Appellate court has no power to condone delay after 90 days of receipt of judgement which expired on 7th April 2017 in the present case." 13. This Appellate Tribunal ultimately dismissed the Appeal holding that refiling on 01st May, 2017 was beyond the period of 90 days from the date of receipt of Judgement and hence the Appellate Tribunal has no jurisdiction to entertain the Appeal. Paragraph 23 and 24 is as follows: "23. Curiously, even when defects were pointed out by the registry on 31stMarch 2017, why they sat tight over the matter for 31 days in removing the defects. 24. Though it was open to the applicant to file a petition before Appellate Tribunal with prayer....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... appeal is treated to be a fresh appeal. The judgment does not elaborate as to what is the basis for coming to the conclusion that when the defects are removed after 7 days and appeal is re-presented thereafter, the appeal would be treated as fresh appeal. The above conclusion is contrary to the scheme of Rule 26, as noticed above. The second three-member bench of this Tribunal in "Arul Muthu Kumaara Samy Vs. Register of Companies" (supra) has relied on judgment of 'Jitendra Virmani' and no separate reasoning has been given as to why appeal shall be treated as fresh appeal if it is filed beyond 7 days period prescribed for removal of defects. 17. The filing of appeal (presentation) and refiling (re-presentation) are two different concepts and have been separately dealt with in the Rules. Rule 22 deals with the presentation of the appeal whereas Rule 26 envisages the re-presentation of the appeal after removal of the defects notified to the Appellant. Section 61(2) of the Code provides that appeal under Section 61(1) shall be filed within 30 days before the NCLAT. The expression 'filing' as occurring in Section 61(2) is for filing of the appeal/presentation of the appeal. 18. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... not permissible. The said submission was rejected and the Hon'ble Supreme Courte laid down that Section 34(3) has no application in refiling the petition which only applies to the initial filing. It is useful to extract the entire judgment of the Hon'ble Supreme Court: "ORDER 1. Leave granted. The appellant is aggrieved by the decision of the Delhi High Court dated 1.9.2015 in FAO (OS)NO.436 OF 2015 refusing to condone a period of 65 days in re-filing the objections under Section 34 of the Arbitration and Conciliation Act, 1996 (for short 'Act'). The award was delivered on 29.10.2012. Admittedly, the objections under Section 34 were filed within the time stipulated under Section 34 of the Act. However, since there was objections, time was granted on 23.1.2013 by the Deputy Registrar of the High Court to remove the objections within a period of 7 days. This was not done. 2. Eventually, the appellant re-filed the matter on 21.3.2013. the explanation given by the appellant is that the amount of court fees to the extent of Rs.8,94,000/- was to be arranged and that took some time. The appellant is the Northern Railway and while it is difficult to condone such....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Hon'ble Supreme Court clearly laid down that limitation for filing of the objection as contained in Section 34(3) does not govern the limitation for re-filing. The submission before the Hon'ble Supreme Court relying on Rule 5(3) of Delhi High Court Rules (Original Side Rules 1967) that any re-filing beyond 7 days would be a fresh institution was expressly rejected. In para 4 of the judgment following has been observed: "4. We find that said section has no application in re-filing the petition but only applies to the initial filing of the objections under Section 34 of the Act. It was submitted on behalf of the respondent that Rule 5(3) of the Delhi High Court Rules states that if the memorandum of appeal is filed and particular time is granted by the Deputy Registrar, it shall be considered as fresh institution. If this Rule is strictly applied in this case, it would mean that any re-filing beyond 7 days would be a fresh institution. However, it is a matter of record that 5 extensions were given beyond 7 days. Undoubtedly, at the end of the extensions, it would amount to re-filing." 22. At this stage, we may notice the Rule 5(3) of Delhi High Court Rules as re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lying on an earlier Judgment of the Delhi High Court and two judgments of the Hon'ble Supreme Court allowed the Appeal. 25. We may now also consider submissions of learned counsel for the parties with regard to Question no. (b). 26. Section 61 of the Code and Section 421 of the Companies Act, 2013 lay down limitation for filing of appeal. Section 61(2) of the Code and Section 421 of the Companies Act are 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." "421. Appeal from the orders of Tribunal. - (1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal. (2) No appeal shall lie to the Appellate Tribunal from an order made by the Tribunal with the consent of parties. (3) Every appeal under sub-section (1) shall be filed within a period of for....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... than to expound those words in their natural and ordinary sense. The words themselves do, in such case, best declare the intention of the Legislature. 24. A Constitution Bench of this Court in Union of India &Anr. v. Hansoli Devi and Others7, approved the rule exposited by Lord Chief Justice Tindal in The Sussex Peerage's case6 and stated the legal position thus: (Hansoli Devi case7, SCC p.281, para 9) "9. ...It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson & Co. Ltd.8 Lord Reid pointed out as to what is the meaning of "ambiguous" and held that: (AC p.735) 'A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to be gathered from the language used in the statute, "thus paying attention to what has been said as also to what has not been said" as observed by his Court in Dental Council of India v. Hari Prakash7. Relevant part of which is quoted hereunder: "7. The intention of the legislature is primarily to be gathered from the language used in the statute, thus paying attention to what has been said as also to what has not been said. When the words used are not ambiguous, literal meaning has to be applied, which is the golden rule of interpretation."" 30. We do not find any support from the NCLAT Rules, 2016 or the Code and Companies Act, 2013 to the submission of learned counsel for the Respondent that limitation prescribed for filing an appeal shall also govern the limitation for re-presentation/refiling. We may also refer to the judgment of Hon'ble Delhi High Court in "Delhi Development Authority v. Durga Construction, 2013 (139) DRJ 133 [DB]", where the question of condonation of delay in refiling came for consideration. An application for refiling was rejected. Paras 1and 2 of the judgment notice the facts and the issue involved, which is to the following effect: ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ule is expressed in the maximum vigilantibus, non dermientibus, jura subveniunt (the laws give help to those who are watchful and not to those who sleep). Therefore the object of the statutes of limitations is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or fraudulent claims. ...." 17. The cases of delay in re-filing are different from cases of delay in filing inasmuch as, in such cases the party has already evinced its intention to take recourse to the remedies available in courts and has also taken steps in this regard. It cannot be, thus, assumed that the party has given up his rights to avail legal remedies. However, in certain cases where the petitions or applications filed by a party are so hopelessly inadequate and insufficient or contain defects which are fundamental to the institution of the proceedings, then in such cases the filing done by the party would be considered non est and of no consequence. In such cases, the party cannot be given the benefit of the initial filing and the date on which the defects are cured, would have to be considered as the date of the initial filin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the time specified in section 34(3) of the Act. However, this jurisdiction is not to be exercised liberally, in view of the object of the Arbitration and Conciliation Act to ensure that arbitration proceedings are concluded expeditiously. The delay in re-filing cannot be permitted to frustrate this object of the Act. The applicant would have to satisfy the Court that it had pursued the matter diligently and the delays were beyond his control and were unavoidable. In the present case, there has been an inordinate delay of 166 days and in our view the appellant has not been able to offer any satisfactory explanation with regard to the same. A liberal approach in condoning the delay in refiling an application under section 34 of the Act is not called for as it would defeat the purpose of specifying an inelastic period of time within which an application, for setting aside an award, under section 34 of the Act must be preferred." 33. We, thus, are of clear opinion that limitation prescribed for filing an appeal under Section 61 and Section 421 of Companies Act cannot be imported while considering condonation of delay in refiling/ representation. We may, however, hasten to add that....