TaxTMI 
TaxTMI 
2024 (11) TMI 837
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....y Code, 2016 (in short 'Code") against the impugned order dated 27.04.2022 by which the application filed by the Appellant under Section 9 of the Code r/w Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 against Respondent No. 1 bearing CP (IB) No. 2082/KB/2019 has been dismissed by the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench). 3. Notice in the application for condonation of delay was issued to which reply has been filed by Respondent No. 1. 4. Impugned order was passed on 27.04.2022 by the Tribunal. Certified copy of the impugned order was prepared on 29.04.2022 which was received by the Appellant through registered post on 09.05.2022. The appeal was prepared on 27.05.2022 and e-filed on 30.05.2022. A delay of 3 days has occurred in filing the appeal. 5. Averments made by the Appellant in the application for condonation of delay are as under:- "3. The instant Application is being filed by the Appellant seeking condonation of delay of 3 days n filing the accompanying appeal. 4. That the certified copy of the judgment and/or order that was passed by the Hon'ble National Company Law....
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....punished for such delay. 9. In view of the foregoing, it is humbly prayed that 3 days delay in filing the accompanying Appeal may be condoned." 6. The application has been opposed by Respondent No. 1 by filing reply to it in which following averments have been made:- "3. The Impugned Order was passed by the Ld. National Company Law Tribunal, Kolkata in C.P. (IB) (KB) No. 2082 of 2019 on 27 April 2022 ("Impugned Order"). The present Appeal was e-filed by the Appellant on 30 May 2022 and thereafter, hard copy of the appeal was filed on 20 June 2022. It is pertinent to mention here that the Appeal was filed without an application seeking condonation of delay in filing the Appeal. I.A. No. 5695 of 2023 ("IA 5695") was filed belatedly by the Appellant on 29 November 2023 seeking condonation of delay in filing the Appeal. 4. The Appellant, in IA 5695, claims that due to summer holidays in Calcutta High Court, the advocate's office was closed on 28 May 2022 and 29 May 2022. Thereafter, the Appeal was e-filed on 30 May 2022. The Appellant purports that the clock of limitation stopped on 30 May 2022 when the Appeal was e-filed. However, admittedly, the hard....
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....s sufficient cause for not filing the appeal, but such period shall not exceed 15 days. In the present case, 30 days from the date of Impugned Order expired on 27 May 2022 and 45 days expired on 11 June 2022. The present Appeal was filed on 20 June 2022 after a delay of 9 days. 9. This Hon'ble Tribunal, vide order F.No.10/37/2018- NCLAT dated 21 October 2022, directed that the period of limitation, with regard to computation of limitation in Appeals, shall be computed from the date of presentation of Appeal as per Rule 22 of the NCLAT Rules, 2016. True copy of order F.No.10/37/2018- NCLAT dated 21 October 2022 issued by this Hon'ble Tribunal is annexed herewith and marked as Annexure A - 3. A copy of Rule 22 of the National Company Law Appellate Tribunal Rules, 2016 is annexed herewith and marked as Annexure A - 4. 10. The order F.No.10/37/2018-NCLAT dated 21 October 2022 was withdrawn by this Hon'ble Tribunal vide F. No. 23/4/2022- Estt./NCLAT dated 24 December 2022, wherein this Hon'ble Tribunal clarified that the limitation in filing of Appeals shall be computed from the date of e-filing. The order further clarified that hard copy has to be file....
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..... Vs. APG Logistics Pvt. Ltd., 2023 LiveLaw (SC) 406, Innovators Cleantech Pvt. Ltd. Vs. Pasari Multi Projects Pvt. Ltd., CA (AT) (Ins) No. 115 of 2024 decided on 24.07.2024 and Somdev Kappor Vs. State of West Bengal & Ors. (2014) 14 SCC 486. 10. We have heard Counsel for the parties and perused the record. 11. There is no dispute that the impugned order was passed on 27.04.2022. Certified copy of the impugned order was prepared on 29.04.2022 and received on 09.05.2022. The appeal was verified on 27.05.2022 and e-filed on 30.05.2022. The hard copy of the appeal was however filed on 20.06.2022. It is also not to dispute that if the period of limitation is counted from the date of e-filing then there is a delay of three days only and if the limitation is to be counted from the date of the presentation of appeal then the appeal is beyond the period of limitation. 12. The issue is thus as to whether the date of limitation is to be counted from the date of e-filing or the date of presentation of appeal? 13. Since, the appeal has been filed under Section 61 of the Code, therefore, it will be useful to refer to the relevant part of Section 61 of the Code which is reproduced as....
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....ling, these rules shall be adopted as nearly as possible on and form a date to be notified separately and the Central Government may issue instructions in this behalf from time to time" 18. Rule 104 deals with the removal of difficulties and issue of directions which is reproduced as under:- "104. Removal of difficulties and issue of directions.- Notwithstanding anything contained in the rules, wherever the rules are silent or not provisions is made, the Chairperson may issue appropriate directions to remove difficulties and issue such orders or circulars to govern the situation or contingency that may arise in the working of the Appellate Tribunal." 19. In exercise of its power in terms of Rule 104, the SOP is being issued from time to time by the Chairperson of this Tribunal and in this regard, it would be relevant to refer to SOP dated 03.01.2021 which is reproduced as under:- "Dated: 03.01.2021 National Company Law Appellate Tribunal Revised Standard Operating Procedure for Ld. Advocate/ Authorised Representative/Party-in-Person for hearing/Mentioning the matter through virtual mode. As directed, the following is the revised St....
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.... GENERAL INSTRUCTIONS 6. The parties shall not be permitted to rely upon any document other than the documents duly filed along with the Appeal/Interlocutory application etc. in conformity with the NCLAT Rules, 2016. 7. Link to enable the Ld. Advocate/Representative/Party-in-Person to join the Video Conference shall be sent to the e-mail ID mentioned in their Appeal/Interlocutory application. Please note that a maximum of three appearance links will be provided per party (AOR, Junior Lawyer, Sr. Advocate / Arguing Counsel) and that it should not be shared with anyone. 8. The standard protocol about one person speaking at a time in VC shall be followed. All the parties shall be given chance, in turns, to present their case by the Hon'ble Bench. Any attempt to jump in during the presentation by another party may disrupt the proceedings. It may also invite 'muting' of the microphone of the disrupting party. In case a person wants to make a point she/he may raise her/his hand to invite the attention of the Hon'ble Bench. She/he can start speaking only after she/he has been allowed to do so. Cross talking or discussion could be done only after the mic has....
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....EM NO. 1 - Gajendra Singh - Appellant OR ITEM NO. 1 - Gaurav Rawat - Respondent OR ITEM NO. 1 - Chetan Rawat PARTY-IN-PERSON, as the case may be, and thereafter the party is required to click on the "JOIN" button. 4. Upon having joined the Courtroom in virtual mode, the arguing counsel shall introduce himself/herself to the Hon'ble Bench and thereafter, shall wait for the instructions from the Hon'ble Bench. On being asked, the party may make submissions and on completion of the submissions, shall at once 'mute' the MIC of the respective device. If the Hon'ble Bench requires the party to make further submission(s), the party may then 'unmute' the MIC of the device and again, on completion of the submission, put the MIC on 'mute' mode. 5. It is important for the parties to remember to keep their MIC on 'mute' at all times, except when the Hon'ble Bench requires them to make submission(s). Thus, when one party is making submissions, it is imperative that all other participants shall keep their respective MIC muted failing which the possibility of MIC catching audio feed from the speakers and creating `echo/noise disturbance' would become very high and may disturb th....
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....port) 20. By virtue of this SOP both modes of filing were made available to the Appellants. 21. On 21.10.2022, another SOP was issued bearing F.No. 10/37/2018-NCLAT which is also reproduced as under:- "NATIONAL COMPANY LAW APPELLATE TRIBUNAL F.No.10/37/2018-NCLAT Dated : 21st October, 2022 ORDER National Company Law Appellate Tribunal Rules, 2016 (NCLAT Rules, 2016), Rule 22 provides for "Presentation of appeal", which is to be made at the filing counter of the Appellate Tribunal. As per Rule 103 of the NCLAT Rules, 2016, Appellate Tribunal has also permitted filing of the Appeal or proceedings through electronic mode (e-filing). SOPs have also been issued with regard to e-filing. SOP dated 3rd January, 2021 further provides: - "It may be noted that it is mandatory that Ld. Advocates/ Authorised Representatives/ Parties-in- Person shall file the Appeal/Interlocutory Application/Reply/ Rejoinder etc. in hard copy also as per the procedure prescribed in NCLAT Rules, 2016 along with the e-filing receipt. The online filing & hard copies must match with proper pagination. The Court Fee shall be paid through Bharat Kosh ( https:....
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....horised Representatives / Parties-in- Person shall file the Appeal/ Interlocutory Application/ Reply/ Rejoinder etc. in hard copy also as per the procedure prescribed in NCLAT Rules, 2016 along with the e-filing receipt. The online filing & hard copies must match with proper pagination. The Court Fee shall be paid through Bharat Kosh (https://bharatkosh.gov.in) and the payment receipt should be attached." The SOPs and directions issued by the Appellate Tribunal do not contain any direction with regard to computation of limitation as to whether limitation is to be computed from the date of e-filing of the Appeals or from the date when Appeals are presented before the Appellate Tribunal as per Rule 22 of the NCLAT Rules, 2016. The Competent Authority decided to issue directions in exercise of power conferred by Rule 104 of the NCLAT Rules, 2016 with regard to computation of limitation for the purposes of filing an Appeal in the Appellate Tribunal on 21.10.2022. It is seen that appeals are e-filed from different parts of the country where the appellant in some cases is located in far away places and time is taken to file physical copy. It is further seen that physica....
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....circular provides as follows: "It may be noted that it is mandatory that Ld. Advocates/ Authorised Representatives/ Parties-in-Person shall file the Appeal/Interlocutory Application/Reply/ Rejoinder etc. in hard copy also as per the procedure prescribed in NCLAT Rules, 2016 along with the e-filing receipt. The online filing & hard copies must match with proper pagination. The Court Fee shall be paid through Bharat Kosh (https://bharatkosh.gov.in) and the payment receipt should be attached." 18. Subsequently, on 21 October 2022, the Registrar of NCLAT issued another order9 with regard to computing limitation for the purpose of filing an appeal before the NCLAT, F.No. 10/37/2018-NCLAT, dt. 21 October 2022 Appellate Tribunal. The order notices that while Rule 22 of the NCLAT Rules 2016 provides for the presentation of an appeal at the filing counter of the NCLAT, Rule 103 permits the filing of appeals or proceedings through the electronic mode. After adverting to the SOP dated 3 January 2021, the order indicates as follows: "The SOPs and directions issued by the Appellate Tribunal do not contain any direction with regard to computation of limitation as to wh....
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.... issued by the Competent Authority: - (1) The order F.No.10/37/2018-NCLAT dated 21.10.2022 is hereby withdrawn and superseded by this order. (2) Limitation shall be computed from the date of e- filing. The hard copy has to be filed within 7 days of e- filing. However, the competent authority is at liberty to notify to extend the period of filing hard copy in case of any unforeseen exigency. In a case where hard copy is filed after 7 days, the appeal will be placed before the Tribunal for appropriate order. (3) The requirement of filing Appeals by electronic mode shall continue along with mandatory filing of the Appeals as per Rule 22 of the NCLAT Rules, 2016. (4) This order will be effective with immediate effect. All concerned shall ensure that Appeals are presented as per Rule 22 of the NCLAT Rules, 2016 within the period of limitation at the filing counter." 21. Hence, by the order dated 24 December 2022, it was clarified that limitation shall be computed with reference to the date of e-filing while the physical copy would have to be filed within seven days of e-filing. The order clarifies that the requirement of filing appea....
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....ted solely on the ground that the application dated 12.1.1987 could not be treated as an application put forward by a firm based on a partnership deed, which came into existence on 10.4.1991, as per Clause 3 of the Partnership Deed but on various other grounds as well. The State Government, in our view, has considered the respondent's application dated 12.1.1987 with regard to the conditions that existed in the year 1998. The Government letter dated 28.6.1994 would indicate that, apart from the respondent, few other applications were also pending prior to the year 1994. Over and above, the State Government during the year 1998, from 3.2.1998 to 21.11.1998, had received 52 applications for establishing compounding, blending and bottling units in IMFLs in various parts of the State. The Excise Commissioner vide his letter dated 25.11.1998 had reported that there was an unprecedented flow of applications, that was the situation prevailing in the year 1998, a factor which was taken note of in not entertaining the respondent's application, whether it was submitted on 12.1.1987 or on 22.11.1998. We cannot, in any way, activate an out-modeled, outdated, forgotten liquor policy of 1998, in....