AI Drafter 
TaxTMI 
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2024 (6) TMI 589
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....echnical) [ Justice M. Venugopal ] Member ( Judicial ) And [ Jatindranath Swain ] Member ( Technical ) For the Petitioner : Mr. PH. Arvindh Pandian , Senior Advocate Appellant For M/s. Cyril Amarchand Mangaldas , Advocates For the Respondent : Mr. Arun Kathpalia , Senior Advocate For Ms. Deepika Murali & Ms. Nivea , Advocates ORDER (Hybrid Mode) Justice M. Venugopal, Member (Judicial): Introduction: The Petitioner / Appellant / Bank / Financial Creditor (State Bank of India), has preferred the instant IA No. 158 / 2024 in Comp. App (AT) (CH) (INS.) No. 53 of 2024, praying for the `Condonation of delay of 3 days', in preferring the instant `Company Appeal', before this `Tribunal', in respect of the `Order', dated 30.10.2023 in CP (IB) No. 205 / 7 / HDB / 2021, passed by the `Adjudicating Authority' / `National Company Law Tribunal', Special Bench - I, Hyderabad Bench. Petitioner / Appellant / Bank (Financial Creditor's) Contentions: 2. The Learned Counsel for the Petitioner / Appellant / Bank (Financial Creditor), submits that by means of an `Impugned Order', dated 30.10.2023 in CP (IB) No. 205 / 7 / HDB / 2021, filed by the Appellant / Peti....
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.... the instant `Appeal'. Because of the occurrence of major Festivals (including Diwali), which delayed the preparation and finalisation of the voluminous of the Appeal Paper Book(s), containing 3985 Pages of 16 Volumes, therefore, the delay, if any, is an `inadvertent' and `unintentional', one. 5. The Learned Counsel for the Petitioner / Appellant / Bank (Financial Creditor), comes out with a `plea' that as per Section 61(1) of the I & B Code, 2016, this `Tribunal', has power to `extend' / `allow', the `Appeal', to be filed, within an extended period of 15 days (after the expiry of 30 days, as enjoined under Section 61(2) of the Code). Further, the cumulative period of 45 days, has still `not expired', and therefore, the Petitioner / Appellant / Bank, is well within such further extended period, assuming that the `period', for securing the `Certified Copy', is `not being excluded', for any reason. 6. It is the stand of the Petitioner / Appellant / Bank, that the `Hon'ble Supreme Court of India', in the matter of `Sanket Kumar Agarwal v. APG Logistics Private Ltd., 2023', SCC OnLine SC 976 (vide Paragraph Nos. 4 & 30), has held that `an Appeal', which was filed, within the oute....
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....lant, refers to the decision of this `Tribunal', in LICHFL Trustee Company Private Ltd. v. Lakshita Jain 2023, SCC OnLine NCLAT, 2356 (vide Paragraph 12), wherein, it is held, that `Rule 50 of the NCLT Rules', 2016, mandates the `Tribunal', to provide the `Certified Copy' of the `Order', to the Parties, `Free of Cost', and that a `Third Party', may `apply' for a `Certified Copy', by making an `Application', with the `Requisite Fees'. 13. The Learned Counsel for the Petitioner / Appellant, adverts to Rule 2 (10) of the NCLT Rules, 2016, defining `Certified by Tribunal', in relation, to a copy of a Document, to mean `Certified' to be a `True Copy', issued by the `Registry' or of a `Bench' of the `Tribunal', under its hand and seal and as provided in Section 76 of the Indian Evidence Act, 1872 (1 of 1872). 14. The Learned Counsel for the Petitioner / Appellant, refers to Section 76 of the Indian Evidence Act, 1872, which reads as under: 76. "Certified copies of public documents - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees there for, toge....
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....hedule of Fees' in NCLT Rules, 2016. Further, an important fact is that, it is the `Certified Copy' of the `Order', is the one which is required to be filed, under Rule 22 (2) of the NCLAT Rules, 2016, and as such, there is `no infirmity' of any kind, whatsoever. 19. The Learned Counsel for the Petitioner / Appellant, points out, that even the Respondent, while challenging the Order, dated 30.01.2023, passed in same Section 7 proceedings of the I & B Code, 2016, by the `Adjudicating Authority' / `Tribunal', had filed, the `Free of Cost Copy', that was provided to it, as the `Certified Copy', along with the `Comp. App (AT) (INS) No. 69 of 2023', which was admitted by this `Tribunal', and Final Orders were passed, on 04.10.2023. 20. The Learned Counsel for the Petitioner / Appellant, submits that the National Company Law Appellate Tribunal, as a matter of practice, also exempts, `filing of a Certified Copy'. Further, the `Adjudicating Authority' / `Tribunal', is required to send `a Free of Cost Certified Copy', as per Rule 50 & 150 of NCLT Rules, 2016, and only, `Third Parties', to a `Proceeding', are required to pay a Fee, for securing, a `Certified Copy' of the `NCLT Order'. ....
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....es not stand." 24. In this connection, the Learned Counsel for the Petitioner / Appellant, cites the decision of the Hon'ble Supreme Court of India, in the matter of Hardeep Singh v. State of Punjab (2014) 3 SCC 92, wherein, at Paragraph No. 43, it is observed as under: 43. "The court cannot proceed with an assumption that the legislature enacting the statute has committed a mistake and where the language of the statute is plain and unambiguous, the court cannot go behind the language of the statute so as to add or subtract a word playing the role of a political reformer or of a wise counsel to the legislature. The court has to proceed on the footing that the legislature intended what it has said and even if there is some defect in the phraseology, etc., it is for others than the court to remedy that defect. The statute requires to be interpreted without doing any violence to the language used therein. The court cannot rewrite, recast or reframe the legislation for the reason that it has no power to legislate." 25. The Learned Counsel for the Petitioner / Appellant, points out the Judgment dated 01.12.2021, of this `Tribunal', (vide Comp. App (AT) (INS) Nos. 918 to 9....
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....by the Appellant in the second appeal that free certified copy was not supplied to him rather the appeal has been filed on the basis of a copy shared by the RP on 07.08.2023. Since, the appeal has been filed in Form NCLAT -1 in terms of Rule 22 of the Rules, 2016, therefore, it is averred by the Appellant in para 17 that the Appellant has filed for a certified copy of the order on 01.08.2023 which has been received on 10.08.2023, therefore, a period of 10 days which has been consumed in obtaining the certified copy may be excluded in terms of Section 12 of the Act, 1963. Although, the Appellant has made this statement of fact in para 17 of the appeal and has declared it to be true while making a declaration and verification of the contents of appeal but as a matter of fact, no certified copy was applied at all much less on 01.08.2023, therefore, it was never received on 10.08.2023 as stated and no certified copy has been appended with the grounds of appeal as well even after it has been filed. The question would thus arise as to why the Appellant has made false averments in the grounds of appeal? The averment made in the grounds of appeal are further declared to be true and also th....
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....ms of the Section 12 of the Act, 1963. Secondly, the Appellant has not even applied for the certified copy (paid copy) at all in filing of the appeals and even one application has been filed i.e. I.A. No. 1118 of 2023 for dispensing with the filing of the certified copy. Thirdly, the Appellant has taken totally a new stand in the application for condonation of delay when an objection was raised by the Respondents that the appeal is not within the period of limitation. In the application filed for condonation of delay, the ground taken is that the limitation is to be counted from the date when free certified copy was made available in so far as the first appeal is concerned whereas no such plea has been taken in so far as the second appeal is concerned in which the averment has been made that the appeal has been filed with the copy given by the RP and lastly even if there is a delay of 10 days for which the application has been filed for condonation of delay, no ground has been made out for the purpose of condoning the delay which would fall within the parameters of sufficient cause and finally the case of the Respondent is fully covered by the decisions of the Hon'ble Supreme C....
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....ect from 30.10.2023, the `date of Pronouncement of the Impugned Order', passed by the `Adjudicating Authority' / `Tribunal', in CP (IB) No. 205 / 7 / HDB / 2021 and adverts to the decision of the Hon'ble Supreme Court of India, in V. Nagarajan V. SKS Ispat & Power Limited, reported in (2022), 2 SCC at P. 244, to fortify his contention. 32. It is the plea of the Respondent that in terms of Section 12(1) of the Limitation Act, 1963, the specified period, of `30 days', in preferring an `Appeal', as per Section 61(1) of the I & B Code, 2016, had expired, on 30.11.2023 (appropriately expired on 29.11.2023), and further, the `Discretionary Condonable period of 15 days', ended on, 15.12.2023. However, the present `Appeal', was filed on 02.12.2023. 33. The Learned Counsel for the Respondent, refers to Rule 22 (1) of the NCLAT Rules, 2016, which enjoins that `every Appeal has to be presented in Form NCLAT - I', and further that, as per Rule 22 (2) of the NCLAT Rules, 2016, `every Appeal is to be accompanied by a Certified (applied for and paid) copy of the Impugned Order. Also that, Rule 14 of the NCLAT Rules, 2016, enables this `Appellate Tribunal', to `exempt the Parties', from comp....
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....a `Certified Copy' of the `Impugned Order', the `Appellant', in the present case has failed to file an `Appeal', under Section 61 (1) of the I & B Code, 2016, in accordance with Rule 22(2) of the NCLAT Rules, within the `period of Limitation, prescribed under Section 61(2) of the IBC, which period has now admittedly `expired'. 40. On behalf of the Respondent, a reference, is made to the `Order', dated 18.01.2024 of this `Tribunal', in A. Rajendra v. Gonugunta Madhusudhan Rao and Ors. (vide Comp. App (AT) (CH) (INS) No. 364 / 2023, which has also emphasised, on the basis of decision of Hon'ble Supreme Court in V. Nagarajan's case, to the effect that `filing of a Certified Copy' (`Paid Copy') of the `Impugned Order' is `mandatory'. 41. According to the Respondent, in the instant case, the `Appeal', was filed on 02.12.2023, Viz. Two days (as per `Registry' it is Three days), after the expiry of specified period of Limitation for 30 days, together with a `Free of Cost Copy', which was made ready and available on 14.11.2023, and the fact of the matter, is the Petitioner / Appellant has not even applied for a `Certified Copy' (Paid Copy), of the `Impugned Order'. 42. The Learned....
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....on 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 clarifies that the statutory mandate of a free copy is not to enable litigants to take two bites at the apple where they could compute limitation from either when the certified copy is received on the litigant's application or received as a free copy from the Registry-whichever is later. 24. IBC is a complete code in itself and overrides any inconsistencies that may arise in the application of other laws. Section 61 IBC, begins with a non obstante provision - "notwithstanding anything to the contrary contained under the Companies Act, 2013" when prescribing the right of an aggrieved party to file an appeal before NCLAT along within the stipulated period of limitation. The notable difference between Section 421(3) of the Companies Act and Section 61(2) IBC is in the absence of the words "from the date on which a copy of the order of the Tribunal is made available to the person aggrieved" in th....
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.... the obligation on the appellant to seek a certified copy through an application. The appellant has urged that Rule 1420 of the NCLAT Rules empowers the NCLAT to exempt parties from compliance with the requirement of any of the rules in the interests of substantial justice, which has been typically exercised in favour of allowing a downloaded copy in lieu of a certified copy. While it may well be true that waivers on filing an appeal with a certified copy are often granted for the purposes of judicial determination, they do not confer an automatic right on an applicant to dispense with compliance and render Rule 22(2) of the NCLAT Rules nugatory. The act of filing an application for a certified copy is not just a technical requirement for computation of limitation but also an indication of the diligence of the aggrieved party in pursuing the litigation in a timely fashion. In a similar factual scenario, NCLAT had dismissed an appeal^21 as time-barred under Section 61(2) of the IBC since the appellant therein was present in court, and yet chose to file for a certified copy after five months of the pronouncement of the order. 33. The answer to the two issues set out in Secti....
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....) 2 SCC Page 244, at Page 265, wherein, at Paragraph No. 31, it is categorically observed and held as under: 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." 48. The Learned Counsel for the Respondent, relies on the decision of this `Tribunal', dated 01.03.2024, in the matter of Chanderpati v. Soni Realtors Pvt. Ltd., (2024) (vide Comp. App (AT) (INS) No. 691 of 2023), wherein, at Paragraph No. 67, it is observed as under: 67. "Three appeals i.e. Appeals No. 1135 of 2022, 1136 of 2022 and 270 of 2023 in which no application for seeking exemption has been filed are held to be not maintainable because the Hon'ble Supreme Court has categorically ....
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....his `Tribunal'. That apart, Rule 150 (3) of the NCLT Rules, 2016, provides that `A Certified Copy of every Order, passed by the `Tribunal', shall be given to the Parties'. 53. The Learned Counsel for the Petitioner / Appellant / Bank, adverts to Entry 31 of the Schedule of Fees, in NCLT Rules, 2016, which provides `Fees', for obtaining, `Certified True Copy of Final Order', passed to `Parties', other than the `concerned Parties' under Rule 50'. 54. The stand of the Petitioner / Appellant / Bank, is that the NCLT Rules, 2016, do not provide for `any payment of fees, for obtaining, a `Certified Copy' of the `Impugned Order', by a Party, which is a Party, to the Legal Proceedings, out of which, the Order arises'. 55. It is further represented on behalf of the Petitioner / Appellant / Bank (Financial Creditor), the `Fees, is only for the `Parties', which is not a `concerned Party' i.e. `a Third Party', to the `Underlying Proceedings', and this is because of the fact, that `any Third Party', which may be `Aggrieved', can also prefer an `Appeal', against an `Order' of the `Adjudicating Authority' / `Tribunal', as per Section 61(1) of the I & B Code, 2016, which enjoins that `Not....
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....rtified Copy' of the `Impugned Order', within the `Limitation Period of 45 days, from the date of Pronouncement'. 61. In so far as `Rule 14' of the NCLAT Rules, 2016, under the caption, `Power to Exempt', the `Parties' from compliance, with any requirement of these Rules', is concerned, the `Appellate Tribunal', may give `such directions', `in matters of Practice and Procedure', as it may consider just and expedient on the Application moved in this behalf, to render `Substantial Justice', and that the stand of the Petitioner / Appellant / Bank, is that, in the present case, the said `contingency', has not arisen, and the contra stand taken on behalf of the Respondent, requires `no consideration', because the same is a `baseless' one. 62. The forceful submission of the Petitioner / Appellant / Bank (Financial Creditor) in the instant, IA No. 158 / 2024 in Comp App (AT) (CH) (INS) No. 53 of 2024 is that, in the `Impugned Order', dated 30.10.2023 of the `Adjudicating Authority' / `Tribunal', in CP (IB) No. 205 / 7 / HDB / 2021 (Filed by the Petitioner / Appellant / Bank as Annexure A1 vide Vol-II at Page 378 of the main `Appeal Paper Book'), the `date of Judgment', is mentioned ....
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....nstant `Appeal', deserves `dismissal', at the threshold. 69. The Learned Counsel for the Respondent, points out that the `Impugned Order' of the `Adjudicating Authority' / `Tribunal', in CP (IB) No. 205 / 7 / HDB / 2021, was passed on 30.10.2023, of course, in the `presence of both the Parties', and the same was `uploaded on the Website', of the `Adjudicating Authority' / `Tribunal', on 30.10.2023, the `date of Pronouncement', itself. 70. To be noted, that as per I & B Code, 2016, an `Aggrieved Person', is expected to bestow `due diligence' and `apply' for a `Certified Copy', upon `Pronouncement of the Order', if he / it, desires, to challenge, the `Impugned Order', of course, keeping in tune with the requirements of Rule 22 (2) of the NCLAT Rules, 2016. No Time Limit : 71. It is pointed out that though, `no time limit', is specified, for filing of an `Application', to `apply' for the `Certified Copy' of the `Order', the `burden', in a given case, is on the part of a Petitioner's concerned, to ensure that `no part of delay', was due to his / its `Latches'. 72. No wonder, the `act of preferring an `Application', praying for a `Certified Copy', of the `Impugned Orde....
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...., relevantly cites the decision in Pedda Jangaiah v. Mandal Revenue Officer, reported in 1996 AIHC 1006 (AP), wherein, it is held that the `Right to seek a `Certified Copy', of `Public Document', is dependent on the `Right', to inspect the Document'. 79. It is to be remembered that Section 76 of the Indian Evidence Act, 1872, does not prescribe any particular form of `Certified Copy', as per decision in Thatha v Paru, 1986 Kerala at Page 196. 80. It is not out of place for this `Tribunal', to pertinently points out the decision of the Hon'ble Supreme Court of India, in National Spot Exchange Limited v. Anil Kohli, Resolution Professional for Dunar Foods Limited (Resolution Professional), reported in (2022), 11 SCC 761 at Spl Pg: 773, wherein at Paragraph 14, it is observed as under: 14. "It is true that in a given case there may arise a situation where the applicant / appellant may not be in a position to file the appeal even within a statutory period of limitation prescribed under the Act and even within the extended maximum period of appeal which could be condoned owing to genuineness viz. illness, accident, etc. However, under the statute, Parliament has not carve....
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....lowed', in a disciplined manner, and `not to be deviated' or `given a go by', since, `Law', stands on a `superior footing' over `equitable considerations'. 84. 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. 85. At this stage, it is aptly pointed out, that this `Appellate Tribunal', cannot pass an `Order', which will be in contravention of the ingredients of I & B Code, 2016, and the NCLAT, Rules, 2016. 86. Apart from the above, this `Tribunal', points out the observations made by Farewell LJ, in the decision in Latham v. R. Johnson & Nephew Ltd., reported in All England Reporter at Page 123E, which runs, as under: "We must be very careful not to allow our sympathy with the infant plaintiff to affect our judgment: sentiment is a dangerous will o' the wisp to take as a guide in the sear....
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....applied for a `Certified Copy' of the `Impugned Order' (Paid Copy), and also, the `Bank', has not filed an `Application', before this `Tribunal', seeking to `Exempt' it, from complying with any of the requirement of the NCLAT, Rules, 2016'. 92. To be noted, it is the obligation of the `Registry' (i.e, Office of the Registry), of the `Adjudicating Authority' / `Tribunal', to send a `Certified Copy' of the `Final Order', passed to the `Parties' concerned `Free of Cost', etc., vide Rule 50 of the NCLT Rules, 2016. In the present case, the Petitioner / Appellant / Bank (Financial Creditor), has preferred the `Appeal', with the aid of `Free of Cost Copy' (Certified True Copy), and not the `Certified Copy' (`Paid Copy') of the `Impugned Order', which is `not in dispute'. More importantly, the `Application' of the Petitioner / Appellant, to comply with a `Certified Copy', by paying the `schedule of fees', cannot be `dispensed with', in terms of Rule 50 of the NCLT Rules, 2016. 93. On going through, the ingredients of Rule 22 (2) of the NCLAT Rules, 2016, this `Tribunal', is of the earnest view that `Filing of a Certified Copy', of the `Impugned Order', so passed by the `Adjudicating....
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....NS) No. 53 / 2024, 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 (AT) (CH) (INS) No. 53 / 2024 (before this `Tribunal), 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'. 98. The `condonation of delay', is an `exception'. It cannot be claimed by a `Person' / `Party', as a matter of right or routine, as the case may be. Undoubtedly, the `Law of Limitation', binds `one and all'. Sufficient Cause: 99. It is pointed out by this `Tribunal', the term `Sufficient Cause', is a relative term. A `Person' / `Party', must be `Vigilant', in `Prosecuting' his / its `Appeal proceedings',....
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....er, 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', (after the expiry of 30 days, from the date of Pronouncement of Order dated 30.10.2023, passed by the `Adjudicating Authority' / `Tribunal', in CP (IB) No. 205 / 7 / HDB / 2021). Viewed from any point of view, the IA No. 158 / 2024 (Condone Delay Application), filed by the Petitioner / Appellant / Bank (Financial Creditor), in Comp. App (AT) (CH) (INS) No. 53 / 2024, is devoid of merits and it fails. Result: In fine, the IA No. 158 / 2024 in Comp. App (AT) (CH) (INS) No. 53 / 2024 is Dismissed. No costs. Comp. App (AT) (CH) (INS) No. 53 / 2024: Considering the fact that this `Tribunal', has dismissed the IA No. 158 / 2024 (Condone Delay Application) in Comp. App (AT) (CH) (INS) No. 53 / 2024, by assigning reasons, the instant main Comp. App (AT) (CH) (INS) No. 53 / 2024, filed by the Petitioner / Appellant / Bank (Financial Creditor), is not `entertained', and the same is hereby `rejected'. ....
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....) As far as the issue in 3(a) above is concerned, it has to be accepted that copy of order provided by NCLT free of cost will be a Certified Copy and at par with Certified Copy obtained on application accompanied by payment of fees because both are certified by the Registry under their hand and seal as mandated under section 76 of Indian Evidence Act, 1872. This free copy is often confused with the copy downloaded free of cost from the website where the order is hosted. That online copy though free, is certainly not a certified copy and the same is discussed in para 31 of V. Nagarajan case and as per the decision rendered in that case, if the same has to be annexed with the appeal, then it has to be accompanied by a plea of exemption. But in this case the copy of order annexed is a copy duly certified by NCLT Registry and provided free of cost. Of course, the party has not applied for it: but that will not take away the character of the copy 'having been certified'. 5) As regards to 3(b) above, since the party has not applied for Certified Copy it has to be held that he has not shown due diligence in pursuing the litigation in a timely fashion and therefore for him n....
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....t of fees" and "the Certified Copy made freely available to the Party to Litigation", contrary to what is being claimed by the Respondent. Thus, if the party is able to get the free Certified Copy and prefer his appeal within the time limit as under section 61(2), his Appeal petition will be perfectly maintainable and there will not be any need to apply for a Certified Copy within the limitation period by paying prescribed fees. As per decision of Supreme Court in V. Nagarajan case, applying for a Certified Copy within the limitation period is a reflection of the diligence of the party and in case he fails to apply for the same, he will not be eligible to get benefit under section 12(2) of Limitation Act, as per to quote the above Judgment, "31... If no application for a Certified Copy has been made, no exclusion can ensue..." and further he will not get automatic exemption under Rule 14 of NCLAT Rules 2016 from the stipulation of providing a certified copy along with the Appeal in accordance with the ruling in the same Judgment. "34...NCLAT Rules mandate certified copy being annexed to an appeal: while tribunals may choose to exempt Parties from this compliance, ....