TaxTMI 
TaxTMI 
2025 (2) TMI 962
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....udra Desosthali, Mr. Pranav Sarthi, Ms. Prachi Dhingra, Advocates For the Respondent : Mr. Naveen Hegde, Mr. Akshay Puri, Mr. Mayank Samuel, Advocates for R-1. Mr. Sidharth Sehti, Mr. Kunal Saini, Advocates for R-3 (NSDL). Mr. Neeraj Malhotra, Sr. Advocate with Mr. Mohit Kumar, Bafna, Mr. Abhishek Baid, Mr. Praneet Das, Mr. Nimish Kumar, Advocates for R-5 (SEBI) JUDGMENT ASHOK BHUSHAN, J. These two Appeal(s) have been filed against the same order of the Adjudicating Authority dated 31.07.2024 passed by National Company Law Tribunal, Mumbai Bench, Court-III in IA/928/2023. By the order impugned, the Application filed by the Liquidator (Respondent No.1) has been allowed. Aggrieved by the aforesaid order both BSE Ltd. and National Stock Exchange of India Ltd. have filed these Appeal(s). 2. Both the Appeal(s) have been filed after the prescribed period of limitation of 30 days and application for condonation of delay being IA No.6846/2024 has been filed in Company Appeal (AT) (Insolvency) No. 1862 of 2024 and IA No.6950/2024 has been filed in Company Appeal (AT) (Insolvency) No. 1883 of 2024. We have heard learned Counsel for the parties on delay condonation application ....
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....9.2024 is within the 15 days condonable period. IA No. 6950 of 2024 (i) The order impugned is of 31.07.2024 and the Appeal has been filed on 17.09.2024. The application prays for condonation of delay of 18 days, praying that period shall be extended till 17.09.2024, 15.09.2024 and 16.09.2024 being holidays. 4. We have heard Shri Abhishek Puri, learned Counsel appearing for the Appellant in IA No.6846 of 2024 and Shri Abhijeet Sinha, learned Senior Counsel appearing for the Appellant in IA No.6950 of 2024; Shri Naveen Hegde, learned Counsel for Respondent No.1; Shri Neeraj Malhotra learned Senior Counsel has appeared for SEBI; Shri Siddharth Sehti, learned Counsel has appeared for NSDL. 5. Shri Abhishek Puri, learned Counsel appearing for the BSE Ltd. submits that application for condonation of delay filed by the Appellant is within condonable period and the Appellant being an organization, which require requisite approval and deliberations, delay deserve to be condoned. It is submitted that certified copy having been applied on 07.08.2024 and received on 08.08.2024, two days period need to be excluded. It is further contended that 15.09.2024 and 16.09.2024 being h....
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....th September, 2024 is not available. It is further submitted that Section 4 of the Limitation Act is also applicable by virtue of Section 238A of the IBC. It is submitted that Rule 3 has to be harmoniously construed and Rule 3, cannot be read to mean that when 15 days period is expiring and the Court is closed for holiday, the said period need to be excluded. It is further submitted by learned Counsel for the Respondent that the period of limitation prescribed under Section 4 of the Limitation Act, cannot be excluded, even if 30 days period is expiring on holiday. What law provides is extension of the period for filing an Appeal, hence, for computation of 30 days period for limitation, there is no applicability of Section 4 of the Limitation Act. He submits that in the present case, 30 days period for filing the Appeal came to an end on 30.08.2024, hence, the fact that 31.08.2024 was Saturday and 01.09.2024 was Sunday, will not be available for any exclusion for filing an Appeal within a period of 30 days. Hence, both the Appeal(s) have been filed beyond condonable period and the application(s) praying for condonation of delay need to be rejected. 8. Learned Counsel appearing fo....
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....s been placed by learned Counsel for the Appellant, provides as follows: "3. Computation of time period.- Where a period is prescribed by the Act and these rules or under any other law or is fixed by the Appellate Tribunal for doing any act, in computing the time, the day from which the said period is to be reckoned shall be excluded, and if the last day expires on a day when the office of the Appellate Tribunal is closed, that day and any succeeding day on which the Appellate Tribunal remains closed shall also be excluded" 14. What is the prescribed period of limitation for filing an Appeal needs to be first considered. 15. Section 61, sub-section (2) clearly provides that prescribed period for limitation is 30 days for filing an Appeal under sub-section (1) of Section 61. The proviso, which empowers the National Company Law Appellate Tribunal to allow an Appeal after expiry of the said period of 30 days, if there is sufficient cause for not filing the Appeal, but such period shall not exceed 15 days, is the period, which cannot be held to be prescribed period. The proviso uses the expression "after the expiry of the said period of thirty days", which clearly means ....
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....iday the appeal can be presented on the day when court reopens?" 17. The above question was considered after referring to provisions of the Limitation Act, provisions of the IBC and three judgments of the Hon'ble Supreme Court, which were relied before this Appellate Tribunal. This Tribunal referring to the judgment of the Hon'ble Supreme Court in Assam Urban Water Supply and Sewerage Board vs. Subhash Projects and Marketing Ltd. - (2012) 2 SCC 624 clearly held that the period of one month under which the delay in filing the application should be condoned is not the period of limitation. It is useful to extract paragraphs 31, 32, 33, 34 and 35 of the judgment of this Tribunal in State Bank of India vs. Darwin Platform Infrastructure Ltd. & Ors., which are as follows: "31. Hon'ble Supreme Court in paragraph 10 held that three months' period for filing an application for setting aside the award came to an end on 26th November, 2003 and the extended period of one month under which the delay in filing the application should be condoned is not the period of limitation. It is relevant to notice paragraph 10 to 14 of the Judgment which is to the following effect: "10.....
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....1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside an arbitral award is three months. The period of 30 days mentioned in the proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the "period of limitation" and, therefore, not the "prescribed period" for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the "period of limitation" or, in other words, the "prescribed period", in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case." 32. The ratio of the above judgment is categorical that the period of 30 days which the Court may extend on sufficient cause is not the period of limitation hence the benefit of Section 4 is applicable only with regard to period of limitation prescribed for filing an application. 33. Learned Counsel for the Respondent has also placed reliance on recent Jud....
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....ondone the delay by observing that the period beyond 120 days is not condonable as under the Arbitration Act, maximum period provided for preferring an application under Section 34 is 120 days." 34. The submission was pressed before the Hon'ble Supreme Court that Appeal having been filed within 30 days condonable period as contemplated in proviso of Section 34(3) and the said period expired on day when court was closed for Summer Vacation Appeal could have been filed on the reopening day i.e. 02.01.2017. The said submission was not accepted. The question which came for consideration was noticed by Hon'ble Supreme Court in paragraph 31 of the Judgment which is as follows: "31. It is submitted that therefore the following questions arise for consideration in the present case: 31.1. Whether the benefit of Section 4 of the Limitation Act, 1963 is available to a party when the "prescribed period" of 3 months for filing a petition under Section 34(3) of the Arbitration Act has already expired and the discretionary period of 30 days under the proviso to Section 34(3) falls on a day when the Court is closed? 31.2. Whether the benefit of Section 10 of the....
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.... or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Limitation Act, 1877, [ See now the Limitation Act, 1963 (36 of 1963).] applies. (2) This section applies also to all [Subs. for "Acts of the G.G. in C" by the A.O. 1937.] [Central Acts] and Regulations made on or after the fourteenth day of January, 1887." 50. Section 34(3) of the Arbitration Act and Sections 2(j) and 4 of the Limitation Act, 1963 fell for consideration before this Court in Assam Urban [Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. Ltd., (2012) 2 SCC 624 : (2012) 1 SCC (Civ) 831] . Even the very issue raised in the present appeal fell for consideration before this Court in Assam Urban [Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. L....
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....e available when the application for setting aside award is filed within "prescribed period of limitation" and shall not be available in respect of period extendable by Court in exercise of its discretion." 37. It is relevant to notice that Judgment of Sridevi Datla was also noticed and considered. In paragraph 59, Hon'ble Supreme Court laid down following: "59. Now, so far as the reliance placed upon the decision of this Court in Sridevi Datla v. Union of India [Sridevi Datla v. Union of India, (2021) 5 SCC 321] relied upon on behalf of the appellant is concerned, at the outset it is required to be noted that in the said decision, this Court has not noticed the decision in Assam Urban [Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. Ltd., (2012) 2 SCC 624 : (2012) 1 SCC (Civ) 831] and there is no discussion on distinction between "prescribed period" and the "discretionary condonable period". On the other hand, the binding decision of this Court in Assam Urban [Assam Urban Water Supply & Sewerage Board v. Subash Projects & Mktg. Ltd., (2012) 2 SCC 624: (2012) 1 SCC (Civ) 831] is directly on point." 38. We have already noticed that pro....
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....Supreme Court has laid down that a judgment may contain more than one ratio. In paragraphs 54 and 55, following was laid down: 54. It is clear that there can be more than one ratio decidendi to a judgment. Thus, in Jacobs v. London County Council [Jacobs v. London County Council, 1950 AC 361 : (1950) 1 All ER 737 (HL)] , the House of Lords, after referring to some earlier decisions, held, as follows : (AC pp. 369-70 : All ER p. 741) ... however, this may be, there is, in my opinion, no justification for regarding as obiter dictum a reason given by a Judge for his decision, because he has given another reason also. If it were a proper test to ask whether the decision would have been the same apart from the proposition alleged to be obiter, then a case which ex facie decided two things would decide nothing. A good illustration will be found in London Jewellers Ltd. v. Attenborough [London Jewellers Ltd. v. Attenborough, (1934) 2 KB 206 (CA)] . In that case the determination of one of the issues depended on how far the Court of Appeal was bound by its previous decision in Folkes v. R. [Folkes v. R., (1923) 1 KB 282 (CA)] , [in which] the court had given two grounds f....
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.... 55. Obviously, there were two reasons for discarding the appellant's argument in Atlas [Atlas Export Industries v. Kotak & Co., (1999) 7 SCC 61] - the first reason was clearly on merits. The second reason undoubtedly refused to entertain this plea as it had not been raised earlier. However, this was coupled with the fact that the parties participated in the arbitral proceedings and suffered an award, after which such plea was then taken. We are, therefore, unable to accede to the contention of Mr Himani that this case cannot be regarded as an authority for the proposition that Sections 23 and 28 of the Contract Act are out of harm's way when it comes to enforcing a foreign award under the Foreign Awards Act, 1961, where both parties are Indian companies." 22. We, thus, are of the view that judgment of this Tribunal in in State Bank of India vs. Darwin Platform Infrastructure Ltd. & Ors. (supra) cannot be said to be an obiter with regard to Question No.ii, which Question No.ii was specifically considered and decided. Hence, the ratio laid down by this Tribunal in State Bank of India vs. Darwin Platform Infrastructure Ltd. & Ors., is a ratio, with which we are boun....
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....be excluded. The submission raised by the learned Counsel for the Respondent that when the last date of limitation, i.e. 30th day in the present case falls on a day when the Appellate Tribunal is closed, that cannot be excluded, is clearly contrary to the express provision of Rule 3. In the facts of the present case, the order was passed on 31.07.2024 and by giving benefit of two days for certified copy, 30th day when limitation was expiring shall be 01.09.2024. 31st August, 2024 and 1st September, 2024 being Saturday and Sunday, the Appeal could have been filed on 02.09.2024, which was the day when the Appellate Tribunal was to re-open. The judgment of Raj Kumar Banerjee vs. Supriyo Kumar Chaudhuri - (2022) SCC OnLine NCLAT 1592 was relied by the Appellant, which was a case where 30 days' period expired on Saturday and Sunday, when the Court was closed. In paragraph 7, this Tribunal has noted Section 4 of the Limitation Act and Rule 3 of the NCLAT Rules and in paragraphs 7 to 10, held following: "7. Law is well settled that the period of limitation commences from the date when the Order is pronounced by the Tribunal. In this context, reference is made to the Judgement of ....
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.... was expiring on 7th May and 8th May being holiday, the last date for filing the Appeal would be 9th May, 2022. In the present case, applying the said analogy, 01.09.2024 being the last day and 31st August, 2024 and 1st September, 2024 being Saturday and Sunday, the Appeal could have been filed by 02.09.2024. The aforesaid two days, i.e. 31st August, 2024 and 1st September, 2024 has to be excluded by virtue of Rule 3. 26. Now we come to the judgments, which have been relied by learned Counsel for the Respondent. First judgment relied is judgment of Privy Council in Maqbul Ahmad vs. Onkar Pratap Narain Singh - (1935) 41 LW 629, the above was a case where one of the objections, which was sought to be raised with regard to limitation in execution proceeding, was the period during which the Court was closed for vacation. When we look into the above judgment, it is clear that the Privy Council held that the time expired on 25th July, 1923, which day did not fall in the long vacation, thus as a matter of fact, the case was distinguishable on facts. It is useful to extract following discussion in the judgment of the Privy Council: "18. The second period is the period of the lo....
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....ourt is closed, the application may be made on the day when the Court reopens. In their Lordships' view that means the proper Court in which the application ought to have been made, and on that view of it, it is impossible to say that this application was made to the proper Court on the day on which that Court reopened. Therefore, on either view of the case, the appellants necessarily fail in regard to that period." 27. More so, in the above case, Privy Council's has contrasted the provision of Section 4 with Section 14 and stated that Section 14 deals with computation period of limitation, whereas Section 4 has nothing to do with computation of the prescribed period. Be that as it may, in view of the specific Rule 3, which provides for exclusion of period during which the Court was closed on the last day of limitation and that days have to be excluded. The above judgment does not support the submission of the Respondent in the present case. 28. The judgment of the Hon'ble Supreme Court relied by learned Counsel for the Respondent is Amar Chand Inani vs. Union of India - (1973) 1 SCC 115. Reliance has been placed on paragraph 8, where following was laid down: "8.....
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....if the plaintiff was entitled to get an exclusion of the time during which he was prosecuting the suit in the Karnal and Panipat Courts, the suit would not be within time as the filing of the suit in the Karnal Court was beyond the period of Limitation. It was, however, argued by Counsel for the appellant that the suit instituted in the trial court by the presentation of the plaint after it was returned for presentation to the proper Court was a continuation of the suit filed in the Karnal Court and, therefore, the suit filed in Karnal Court must be deemed to have been filed in the trial court; We think there is no substance in the argument, for, when the plaint was returned for presentation to the proper Court and was presented in that Court, the suit can be deemed to be instituted in the proper Court only when the plaint was presented in that Court. In other words, the suit instituted in the trial court by the presentation of the plaint returned by the Panipat Court was not a continuation of the suit filed in the Karnal Court (see the decisions in Harachand Succaram Gandhy v. G.I.P. Rly. Co. [AIR 1928 Bom 421] Bimla Prasad Mukerji v. Lal Moni Devi [AIR 1926 Cal 355] and Ram Kishu....
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....came to hold that the appeal had been preferred on the 91st day, one day beyond the condonable period of limitation and, accordingly, rejected the application for condonation of delay which was filed along with the memorandum of appeal." 31. Paragraph 8 notices the submission of the Appellant, which is to the following effect: "8. It is submitted by Mr. Gupta, learned counsel for the petitioner that the petitioner received the order passed by the adjudicating officer on August 29, 2006 and the right to prefer an appeal under section 35 of the Act was in subsistence for a period of 60 days and the said period expired only on October 28, 2006 which was a Saturday and, therefore, he was entitled to have the benefit of 28th and 29th October, 2006 being Saturday and Sunday and, therefore, the Commissioner of Appeals has erred in computing the period of limitation. To put it differently, it is urged by Mr. Gupta that the period has to be computed from the date the right to prefer an appeal had accrued but the Commissioner computed the said period fallaciously and expressed the view that the appeal was preferred on the 91st day and, therefore, he had no authority to condone th....
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.... runs counter to the principles which are culled out from the authorities we have referred to hereinbefore. We are disposed to think that the Commissioner as well as the revisional authority has correctly computed the period of limitation and appositely opined that the memorandum of appeal was presented on the 91st day and hence, the Commissioner could not have condoned the delay even if sufficient grounds have been shown beyond 30 days, i.e., 90 days in toto. Thus, the finding recorded on that score stands on terra firma." 33. The High Court ultimately approved the finding of the Commissioner and Regional Authority that they have correctly computed the period of limitation and the Appeal was presented on 91st day, i.e. beyond condonable period. Hence, the said finding was affirmed. We have already noticed Rule 3 of the NCLAT rules, which provides for exclusion of the period, which falls on day when the office of the Appellate Tribunal is closed. Hence, exclusion of the period is specifically provided in the Rules. The judgment of the Delhi High Court, which had only considered Section 4 of the Limitation Act had no occasion to consider the rule 3 of the NCLAT Rules, 2016. Hence....