TaxTMI 
TaxTMI 
2024 (3) TMI 80
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.... dismissed by the Adjudicating Authority on 09th November, 2023 against which order this Appeal has been e-filed on 27th December, 2023. 4. In Section 5 Application, the ground taken by the Appellant is that impugned order was passed on 09th November, 2023 which was uploaded only on 22nd November, 2023 and after uploading of the Order, the Appellant started approaching the several advocates for filing the Appeal, the Appeal was prepared and completed on 24th December, 2023. It is submitted that 30 days period prescribed under Section 61(2) expired only on 22nd December, 2023 and there is delay of only 5 days in filing the Appeal. 5. Delay Condonation Application was heard on 08th February, 2024 on which date Learned Counsel appearing for the Respondent contended that order was delivered on 09.11.2023 itself and this tribunal on 08.02.2024 called for a report from Registrar of NCLT, Mumbai Bench. The Order dated 08th February, 2024 passed by this Tribunal is as follows: "08.02.2024 This is a delay condonation of application filed by the Appellant to condone the delay. This appeal has been filed against order dated 09.11.2023 passed by National Company Law Tribunal, Court-V, Mumb....
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.... that order was pronounced on 09th November, 2023 itself by the Adjudicating Authority after hearing the parties in the Court in presence of learned counsel for the Appellant. The submission of the Appellant that order was not pronounced is not correct. I.A. filed by the Appellant was dismissed in the presence of learned counsel for the Appellant hence the period for limitation shall commence from the date when order was pronounced. It is submitted that Impugned Order records the presence of the counsel representing the appellant when order was being dictated in the open court and it is not open to Appellant to contend that limitation shall commence only from the date of the uploading. It is submitted that Appeal has been filed beyond 15 days from expiry of the prescribed period of limitation of 30 days. The delay in filing the Appeal is beyond condonable period and the same is liable to be rejected. 10. We have considered the submissions of Learned Sr. Counsel for the parties and have perused the record. 11. Learned Counsel for the Appellant has placed reliance on Judgment of Hon'ble Supreme Court in Sanjay Pandurang Kalate Vs. Vistra ITCL (INDIA) Limited & Ors., Civil Appeals N....
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....eriod of fifteen days. We are of the considered view that the appeal should be restored to the NCLAT for reconsidering whether the appellant has shown sufficient cause for condoning the delay beyond thirty days. To facilitate this, the impugned order of the NCLAT declining to condone the delay is set aside and the proceedings are restored to the file of the NCLAT. We are not inclined to stay the CIRP at this stage. However, the NCLAT is directed to dispose of the appeal at the earliest." 12. The Hon'ble Supreme Court took the view that since no substantive order was available on 17th May, 2023, limitation will not start running from 17th May, 2023 rather it will start from 30th May, 2023 when the order was uploaded. 13. Now coming to the facts of the present case, the impugned order clearly notices that learned counsel for the applicant in I.A. No. 3445 of 2023 was present and the order was passed in presence of the learned counsel for the Appellant and by the impugned order I.A. was dismissed. In the report which has been called by this Tribunal by order dated 08.02.2024, report has stated that order was dictated in the open court. When an order is being dictated in the open co....
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....isdiction to condone the delay of 15 days after expiry of the limitation. 15. Learned Counsel for the Respondent placed reliance on Judgment of this Tribunal in Raiyan Hotels and Resorts Pvt. Ltd. Vs. Unrivalled projects Pvt. Ltd., C.A.(AT) Ins. No. 1071 of 2023, decided on 11th October, 2023. This tribunal after noticing the Judgments of the Hon'ble Supreme Court in Raja Harish Chandra Raj Singh Vs. The Deputy Land Acquisition Officer-(1962) 1 SCR 676 and Judgment of Hon'ble Supreme Court in State of Punjab Vs. Quisar Jehan Begum and Anr. - (1964) 1 SCR 971, laid down that when the orders were pronounced by the Adjudicating Authority in the presence of Learned Counsel for the Appellant the knowledge of the order has to be constructively construed on the Appellant and it is not open for the Appellant that they were not aware of the contents of the Order. In paragraph 22, following was laid down: "22. The present is a case where order is pronounced by the Adjudicating Authority in accordance with the statutory Rules namely- National Company Law Tribunal Rules, 2016. In the facts of both the above Appeals, we have noticed that the orders were pronounced by the Adjudicating Authori....
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.... owing to the specific language of Sections 61(1) and 61(2), it is evident that limitation commenced once the order was pronounced and the time taken by the court to provide the appellant with a certified copy would have been excluded, as clarified in Section 12(2) of the Limitation Act, if the appellant had applied for a certified copy within the prescribed period of limitation under Section 61(2) IBC. The construction of the law does not import the absurdity the appellant alleges of an impossible act of filing an appeal against an order which was uploaded on 12-3-2020. However, the mandate of the law is to impose an obligation on the appellant to apply for a certified copy once the order was pronounced by NCLT on 31-12- 2019 [Cethar Ltd. (Resolution Professional) v. SKS Ispat & Power Ltd., MA No. 906/IB/2019 in CA No. 38/IB/2018, order dated 31-12-2019 (NCLT)] , by virtue of Section 61(2) IBC read with Rule 22(2) of the Nclat Rules. In the event the appellant was correct in his assertion that a correct copy of the order was not available until 20-3-2020, the appellant would not have received a certified copy in spite of the application till such date and accordingly received the ....