TaxTMI 
TaxTMI 
2024 (3) TMI 805
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....o.2302, 2303 of 2023 Company Appeal (AT) (Insolvency) No. 1076 of 2022 & I.A. No.3159, 3160, 3161 of 2022 Company Appeal (AT) (Insolvency) No. 1085 of 2022 & I.A. No.3198, 3143, 3199,3200 of 2022 Company Appeal (AT) (Insolvency) No. 1135 of 2022 & I.A. No.3401, 3402, 3362 of 2022 Company Appeal (AT) (Insolvency) No. 1136 of 2022 & I.A. No.3407, 3408 of 2022 Company Appeal (AT) (Insolvency) No. 757 & 758 of 2022 & I.A. No. 2080,2081, 2082, 2083,2084, 2085 of2022 Company Appeal (AT) (Insolvency) No. 964 & 965 of 2022 & I.A. No. 2749,2750, 2751, 2752,2753, 2754, 4956 of 2022 Company Appeal (AT) (Insolvency) No. 1015 of 2022 & I.A. No.2961, 2962, 2963 of 2022 Company Appeal (AT) (Insolvency) No. 1122 of 2022 & I.A. No.3340, 3341, 3342,3343 of 2022 Company Appeal (AT) (Insolvency) No. 1143 of 2022 & I.A No.3434, 3435, 3436,3437, 3438 of 2022 Company Appeal (AT) (Insolvency) No. 1174 of 2022 & I.A. No.3500, 3536, 3537 of 2022 Company Appeal (AT) (Insolvency) No. 270 of 2023 & I.A. No.950, 951, 4269 of 2023 Comp. App. (AT) (Ins) No. 1079 of 2023 & I.A. No. 3727, 3728, 4508 of 2023 [Justice Rakesh Kumar Jain] Member (Judicial) And [Mr. Naresh Salecha] Member (Technical) For the Appel....
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....r. 3. Comp. App. (AT) (Ins) No. 1085 of 2022 Rambir Vs. Soni Realtors Pvt. Ltd. & Anr. 4. Comp. App. (AT) (Ins) No. 1135 of 2022 Sanjay Kumar Bansal Vs. Soni Realtors Pvt. Ltd. &Ors. 5. Comp. App. (AT) (Ins) No. 1136 of 2022 Sanjay Kumar Bansal Vs. Shri Manoj Kulshreshta&Ors. 6. Comp. App. (AT) (Ins) No. 757 & 758 of 2022 Capital Ventures Pvt. Ltd. Vs. Manoj Kulshrestha Resolution Professional Soni Realtors Pvt. Ltd. & Anr. 7. Comp. App. (AT) (Ins) No. 964 & 965 of 2022 Amit Garg Vs. Manoj Kulshreshta& Anr. 8. Comp. App. (AT) (Ins) No. 1015 of 2022 Sukhjinder Singh & Anr. Vs. Soni Realtors Pvt. Ltd. 9. Comp. App. (AT) (Ins) No. 1122 of 2022 Somesh Arora & Anr. Vs. Soni Realtors Pvt. Ltd. Through Resolution Professional 10. Comp. App. (AT) (Ins) No. 1143 of 2022 Rakhi Thakreja&Ors. Vs. Soni Realtors Pvt. Ltd. &Ors. 11. Comp. App. (AT) (Ins) No. 1174 of 2022 S. E. Investments Ltd. Vs. Soni Realtors Pvt. Ltd. & Anr 12. Comp. App. (AT) (Ins) No. 270 of 2023 Manan Chopra Vs. Soni Realtors Pvt. Ltd. 13. Comp. App. (AT) (Ins) No. 1079 of 2023 Anil Chopra Vs. Soni Realtors Pvt. Lt....
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....ertified copy. 3. Rambir Vs. Soni Realtors Pvt. Ltd. & Anr. Company Appeal (AT) (Ins) No. 1085 of 2022 Appeal filed on 14.07.2022 Delay of 4 days in filing appeal IA No. 3198 of 2022 @ Pg. No. 290 Application for condonation of delay is filed with the appeal Condonation is sought for 4 days Certified copy of the impugned order is filed, which was certified copy applying on 05.08.2022 IA No. 3199 of 2022 Application filed for seeking exemption from filing certified copy. 4. Sanjay Kumar Bansal Vs. Soni Realtors Pvt. Ltd. &Ors. Company Appeal (AT) (Ins) No. 1135 of 2022 Appeal filed on 26.07.2022 Delay of 16 days in filing appeal IA 3402/2022 Application condonation delay is filed. No. for of Certified copy of the impugned order is filed However, certified copy is applied on 12.08.2022 5. Sanjay Kumar Bansal Vs. Soni Realtors Pvt. Ltd. &Ors. Company Appeal (AT) (Ins) No. 1136 of 2022 Appeal filed on 11.07.2022 Delay of 1 day in filing appeal Application for condonation of delay is not filed. Certified copy of the impugned order is filed. However, certified copy is applied on 12.08.2022. 6. Capital V....
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..... 1174 of 2022 Appeal filed on 22.07.2022. Delay of 12 days in filing appeal. IA No. 3538 of 2022 Condonation of delay application is filed. However, condonation is sought of only 9 days. Certified copy of impugned order is not attached. IA No. 3537 of 2022 @ Pg. No. 835 Application filed for seeking exemption from filing certified copy. 12. Manan Chopra Vs. Soni Realtors Pvt. Ltd. Company Appeal (AT) (Ins) No. 270 of 2023 Appeal filed on 11.07.2022 Delay of 1 day in filing appeal Condonation of delay application is not filed Certified copy of the impugned order is attached. However, certified copy of the impugned order applied on 28.09.2022. 13. Anil Chopra Vs. Soni Realtors Pvt. Ltd. Company Appeal (AT) (Ins) No. 1079 of 2023 Appeal filed on 11.07.2022. Delay of 1 day in filing appeal Application for condonation of delay is not filed. Only photocopy of certified copy is attached, which was applied on 28.09.2022. IA No. 3727 of 2023 @ Pg. No. 223 Application filed for seeking exemption from filing certified copy. 9. The argument raised by Counsel for the RP is that the filing of certified copy is mandatory in an appeal file....
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.....07.2022 instead of 10.06.2022. In this regard, he has relied upon a decision of this Court in the case of Ashok Tiwari Vs. Tattva & Mittal Lifepaces Pvt. Ltd., 2023 SCC Online NCLAT 2179 in which the following observations have been made:- "4. We have considered the submissions made by both sides and we find that the Appellant herein had filed for rectification of Order dated 17.01.2023 on 15.02.2023 which is within 30 days of the said Order. The Order dated 17.01.2023 was partly rectified vide Order dated 21.03.2023 and, excluding the period taken for obtaining the certified copy, the Appeal has been filed within 30 days of the said Order. The Order dated 17.01.2023 has merged with the Order dated 21.03.2023 due to partial rectification." 12. It is further argued that the Appellant has filed the appeal alongwith application i.e. I.A. No. 3199 of 2022 for seeking exemption from filing the certified copy which is still pending in which the order is yet to be passed by this Court though it is not disputed that the certified copy was applied on 05.08.2022, allegedly after the expiry of limitation prescribed under Section 61(2) of the Code. He has argued that I.A. No. 3199....
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....f 2022 has also been filed for condonation of delay. In this case, the certified copy was applied on 12.08.2022 but no application has been filed under Rule 11 and 14 for the purpose of seeking exemption from the filing of certified copy. 14. In rebuttal, while arguing CA (AT) (Ins) No. 1085 of 2022, Counsel for the Respondent has submitted that the impugned order was passed on 10.06.2022 and if limitation is to be counted from 11.06.2022, in terms of the Rule 3 and Section 12 of the Act, the appeal could have been filed till 11.07.2022 but it has been filed on 14.07.2022, beyond the period of 30 days for which the Appellant has filed an application for seeking condonation of delay of four days, therefore, the appeal cannot be stated to have been filed within the period of 30 days which is prescribed under Section 61(2) of the Code. It is further submitted that even if there is an order passed by the Adjudicating Authority for rectification of the order on 01.07.2022 on the application of the Respondent, it would not extend the period of limitation for filing the appeal from 01.07.2022 as it was only a rectification of an error of omission. It is submitted that in any case, the ....
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....itra that the requirements of Order VI and Order VII of the Code, being procedural in nature, any omission in respect thereof will not render the plaint invalid and that such defect or omission will not only be curable but will also date back to the presentation of the plaint. We are also of the view that the reference to the provisions of the Code in Rule 1 of Chapter VII of the Original Side Rules cannot be interpreted to limit the scope of such reference to only the provisions of the Code as were existing on the date of such incorporation. It was clearly the intention of the High Court when it framed the Original Side Rules that the plaint should be in conformity of the provisions of Order VI and Order VII of the Code. By necessary implication reference will also have to be made to Section 26 and Order IV of the Code which, along with Order VI and Order VII, concerns the institution of suits. We are ad idem with Mr. Pradip Ghosh on this score. The provisions of Sub-rule (3) of Rule 1 of Order IV of the Code, upon which the Division Bench of the Calcutta High Court had placed strong reliance, will also have to be read and understood in that context. The expression "duly" used in ....
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.... the impugned order. He has adopted the argument of the Appellant in previous appeals mentioned hereinabove but in addition, it is submitted that the decision in the case of Jindal Power Limited (Supra) is not applicable because in that case the appeal was filed after 45 days and the limitation was sought to be extended on the ground that the certified copy was applied on 44th day i.e. 15.09.2022 and obtained on 19.09.2022 and the said period was sought to be excluded about which the Court has said that the period for applying the certified copy and its preparation can be excluded only if the certified copy is applied within the prescribed period of limitation i.e. 30 days and not during the period of 15 days, a period which may be extended on showing sufficient cause provided under Section 61(2) proviso. 20. In rebuttal, Counsel for the Respondent has submitted that these appeals have been filed on 05.07.2022 and is within the period of limitation. The certified copy is not filed but I.A. No. 2082-2083 of 2022 has been filed for seeking exemption from filing certified copy of the impugned order and has reiterated the argument raised in aforesaid appeals. 21. Rahul Malhotra, ....
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....n is to be counted from 11.06.2022. It is also submitted that the application for condonation of delay has not yet been decided and shall be argued separately as it is not the issue in the present case. The certified copy has not been attached by the Appellant though the application for seeking exemption from filing the certified copy of the impugned order has been filed. Rest of the argument raised in respect of the other cases and also their objection has been reiterated. 23. Shivam Singh, Counsel appearing on behalf of the Appellant has argued CA (AT) (Ins) No. 1076 of 2022. This appeal has also been filed on 13.07.2022. There is an application for condonation of delay bearing I.A. No. 3161 of 2022 and I.A. No. 3160 of 2022 for seeking exemption from filing certified copy of the impugned order but the certified copy has not been attached. He has adopted the argument of other counsels appearing on behalf of the Appellants and in rebuttal, Counsel for the Respondent has reiterated his stand taken in aforesaid appeals. 24. Dheeraj Gupta, Counsel appearing on behalf of the Appellant has argued CA (AT) (Ins) No. 964 & 965 of 2022. This appeal is filed on 22.07.2022 and thus the....
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.... submitted that the appeal has been filed on 21.07.2022 through efiling. He has also adopted the argument of other counsels in support of his case. 28. On the other hand, Counsel for the Respondent has submitted that since the impugned order was passed on 10.06.2022 and if the date on which the order was passed is to be excluded, the limitation would start running from 11.06.2022 and shall come to end on 11.07.2022 whereas the appeal through efiling was filed on 21.07.2022 and hard copy is filed on 26.07.2022, therefore, the Appellant has himself filed an application bearing I.A. No. 3340 of 2022 for condonation of delay of 11 days. It is argued that the application for condonation of delay, filed under Section 61(2) of the proviso, is a separate subject matter. 29. Himanshu Dagar, Counsel appearing on behalf of the Appellant has argued CA (AT) (Ins) No. 691 of 2023. This appeal is filed on 11.07.2022, therefore, it is within the period of 30 days but the certified copy was applied on 28.09.2022 and an application bearing I.A. No. 2302 of 2023 is filed for seeking exemption from filing certified copy of the impugned order. 30. No one came forward on behalf of the other App....
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....lso 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 authorised representative. (6) The processing fee prescribed by the rules, with required number of envelopes of sufficient size and notice forms as prescribed shall be filled along with memorandum of appeal. 31. Interlocutory applications.- Every interlocutory application for stay, direction, condonation of delay, exemption from production of copy of order appealed against or extension of time prayed for in pending matters shall be in Form NCLAT-2 and the requirements prescribed in that behalf shall be complied with by the applicant, besides filing a affidavit supporting the application." 35. As per Rule 22, every appeal has to be presented in Form NCLAT-1 and as per Rule 22(2) every appeal is to be accompanied by a certified copy of the impugned order. Rule 31 pertains to the Interlocutory Applications which may be for stay, direction, dispensing with, condonation of delay or calling of records and all such applications are to be filed in Form....
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.... days alongwith an application for seeking exemption from filing certified copy of the impugned order and an application for seeking condonation of delay and some of the appeals have been filed either within 30 days or within the extended period of 15 days but without an application for seeking exemption from filing certified copy of the impugned order, however, out of 13 appeals, in one appeal it is alleged that the certified copy was applied within the period of 30 days but in rest of the appeals it is beyond the period of even 45 days. 40. It is pertinent to mention that Appeals No. 691 of 2023, 757 & 758 of 2022, 1015 of 2022 and 1079 of 2023 (four appeals) have been filed within the period of 30 days without certified copy of the impugned order but with an application for seeking exemption from filing certified copy of the impugned order. Appeals No. 1076 of 2022, 1085 of 2022, 964 & 965 of 2022, 1122 of 2022, 1143 of 2022 and 1174 of 2022 (six appeals) have been filed within the extended period of 15 days alongwith an application for condonation of delay and an application for seeking exemption from filing certified copy of the impugned order. Whereas Appeals No. 1135 of 2....
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....utory period had expired and application for condonation of delay had not been filed. It further noted that Rule 22 of the NCLAT Rules, 2016 (in short 'NCLAT Rules') provides that every appeal must be accompanied with a certified copy of the impugned order, which had not been annexed. 45. The argument raised by the Appellant before the Hon'ble Supreme Court in the aforesaid case was that Section 420(3) of the Act and Rule 50 of the NCLT Rules mandates a free copy of the order to be issued to every party. This obviates the need for any party to obtain a certified copy of the order it seeks to impugn by way of an appeal, therefore, the clock of limitation would run from the date of free copy is issued. It was also urged that Rule 22 of the NCLAT Rules mandates a certified copy of the order for filing an appeal but Rule 14 of the NCLAT Rules permits a waiver from compliance with any of the rules, which has been usually granted in case of a downloaded online copy, in lieu of a certified copy of the order. 46. On the other hand, submissions made by the Respondent noticed in the aforesaid judgment that Section 421(3) of the Act is not applicable to the proceedings under the Code an....
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....r and obtain a certified copy for filing an appeal. Any delay in receipt of a certified copy, once an application has been filed, have been envisaged by the legislature and duly excluded to not cause any prejudice to a litigant's right to appeal". The Hon'ble Supreme Court has referred to Section 12 of the Limitation Act, 1963 (in short 'the Act of 1963') and has made the following observations:- "31. The import of Section 12 of the Limitation Act and its explanation is to assign the responsibility of applying for a certified copy of the order on a party. A person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the "time requisite" for obtaining a copy is to be excluded. However, the time taken by the court to prepare the decree or order before an application for a copy is made cannot be excluded. If no application for a certified copy has been made, no exclusion can ensue. In fact, the explanation to the provision is a clear indicator of the legal position that the time which is taken by the court to prepare the decree or order cannot be excluded before the application to obtain a cop....
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....rescribed period of limitation under Section 61(2) of the 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 March 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 the NCLT on 31 December 2019, by virtue of Section 61(2) of the 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 March 2020, the appellant would not have received a certified copy in spite of the application till such date and accordingly received the benefit of the suo motu order of this Court which came into effect on 15 March 2020. However, in the absence of an application for a certified copy, the appeal was barred by limitation much prior to the suo motu direction of this court, even after factoring in a permissible fifteen days of condonation under Section 61(2). The Court is not empowered to condone delays beyond statutory prescriptions in special statutes containing a provision for limitation. ....
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....Supra), it has been held that the limitation would commence from the date of order and the time taken by the Court to provide the Appellant certified copy has to be excluded, as provided under Section 12(2) of the Limitation Act, 1963, provided a certified copy is applied within the period of limitation prescribed under Section 61(2) of the Code. It has also held that as per Rule 22(2) of the NCLAT Rules, filing of an appeal with the certified copy is mandatory. 52. In so far as the second judgment, relied upon by the Counsel for the RP in the case of Sanket Kumar Agarwal & Anr. (Supra) is concerned, the facts of this case are that the application filed under Section 7 of the Code by the Appellant was dismissed by the Adjudicating Authority on 26.08.2022. The Appellant filed the application on 02.09.2022 for obtaining the certified copy of the order dated 26.08.2022. The application was received by the registry on 05.09.2022. It uploaded the order on the website on 15.09.2022 and provided the certified copy to the Appellant on the same date i.e. 15.09.2022. the Appellant filed the appeal on 10.10.2022 through e-filing with an application for seeking condonation of delay of five ....
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....res the presentation of an appeal at the filing counter in the prescribed mode, but on the other, NCLAT also envisages e-filing of appeals. This is made evident in the SOP dated 3 January 2021 which mandates the filing of a physical copy of an appeal as per the procedure prescribed in the NCLAT Rules 2016, while referring to the procedure for the hearing of cases through the virtual mode, using the e-filing portal. The subsequent order dated 21 October 2022 acknowledges that there was an absence of clarity in regard to the period with reference to which limitation would commence. Hence, the order purported to state that the period of limitation shall be computed from the date of the presentation of an appeal under Rule 22. Significantly, the above order was to be effective from 1 November 2022. In the present case, admittedly, the appeal was e-filed on 10 October 2022 and even a physical copy was lodged on 31 October 2022 prior to the date on which the order of the Registrar dated 21 October 2022 was to come into effect. The order dated 21 October 2022 was subsequently withdrawn on 24 December 2022. The order dated 24 December 2022 now clarifies that limitation would be computed wi....
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....e, the Hon'ble Supreme Court held that (i) the limitation stops running on the e-filing of the appeal and not from the date of presentation of the physical copy (ii) the date on which the order is pronounced is to be excluded from the calculation of limitation (iii) the time taken by the NCLAT to provide the certified copy would be excluded in the calculating of limitation provided the Appellant apply for certified copy within the period prescribed under Section 61(2) of the Code. 55. The next judgment relied upon by Counsel for the RP is in the case of Jindal Power Limited (Supra). 56. The facts of this case are that the impugned order was pronounced on 02.08.2022 and the appeal was filed on 19.09.2022. From 02.08.2022, 30 days period came to an end on 01.09.2022 and further 15 days period also came to an end on 16.09.2022 and since the appeal was filed on 19.09.2022, therefore, it was on the 48th day. 57. In this case, the certified copy was applied on 15.09.2022 which was delivered on 19.09.2022, therefore, argument was raised that the period consumed during obtaining certified copy need to be excluded. This submission was made because the certified copy was applied on ....
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..... (v) The Appellant having failed to apply for a certified copy, rendered the appeal filed before the NCLAT as clearly barred by limitation. (vi) It is not open to the person aggrieved under the Code to await the receipt of free certified copy under Section 420(3) of the Act r/w Rule 50 and prevent limitation from running (vii) Litigant has to file the appeal within 30 days which can be extended upto a period of 15 days on showing sufficient cause which cannot be condoned thereafter (viii) Limitation cease to run from the date of -e-filing (ix) In order to take advantage of Section 12(2) of the Act 1963, certified copy has to be applied during the currency of the period prescribed for filing an appeal. 60. In our humble opinion, in none of the aforesaid judgments, the issue raised in these appeals that if the certified copy is not applied within 30 days then the limitation would expire, has been questioned and as such there is no decision on it. 61. Counsel for the Appellant has relied upon a decision of the Hon'ble Supreme Court in the case of Sambhaji and Ors. (Supra) in which it has been held that 'processual law is not to be a tyrant but a servant, not an obstruction but ....
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....n of delay which are yet to be decided and all these ten appeals have been filed with applications for seeking exemption from filing certified copy of the impugned order whereas three appeals have been filed without seeking exemption from filing certified copy of the impugned order which can be granted under Rule 14 of the Rules. 64. In all these appeals, the certified copies have been obtained after the expiry of 30 days/45 days but the fact remains that the application for seeking exemption is yet to be disposed of and this Tribunal has the jurisdiction to grant the exemption for the compliance of the Rules though on a sufficient cause shown in an appropriate application filed by the Appellant. Similarly, six appeals have been filed beyond the period of 30 days but within 45 days and the application for condonation of delay has not yet been decided. Supposing, the application for condonation of delay is allowed then the appeals shall be deemed to have been filed within the period of limitation and if the application is dismissed then the matter would be over. In so far as the remaining three appeals are concerned, these appeals have been filed without any application for seeki....