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2024 (8) TMI 1558 - AT - IBCCondonation of delay of 15 days in filing the appeal - certified copy was never applied or obtained by the appellant - manner of calculating the period of limitation. Manner of calculating the period of limitation - HELD THAT - There exist a clear distinction as to when does the limitation starts and how the limitation period needs to be computed. Section 12 of the Limitation Act deals with computation of the limitation. Though much is said by the learned senior counsel for Respondent No.1 viz. per Section 29 of the Limitation Act Sections 4 to 24 of the Limitation Act shall not be applicable in an appeal filed under other statutes but the correct position of law is not so - A bare perusal of Section 29(2) would rather reveal the applicability of Section 4 to 24 unless expressly excluded by the Special Law. Admittedly the IBC does not exclude the applicability of Section 4 to 24 of Limitation Act. On a combined reading of Section 238A of the Code with Sections 12 and 29(2) of the Limitation Act it cannot be said that the Code has excluded applicability of Sections 4 to 24 of Limitation Act. Rather Section 238A of the Code says the provisions of Limitation Act shall apply as far as may applicable to the proceedings under the Code. As per Sanket Kumar Agarwal 2023 (5) TMI 901 - SUPREME COURT the day of pronouncement shall have to be excluded for calculating the period for Limitation. Admittedly if it is excluded in the present case the appeal shall be within the condonable period of 15 days. Certified copy was never applied or obtained by the appellant - HELD THAT - The facts reveal the appellant had applied for a certified copy of order on 08.04.2024 and was given application No.D-0005. The certified copy of the impugned order was given on 15.04.2024 and is annexed with this appeal and records the application number. This fact is sufficient to vibe a confusion that such copy though marked as free copy may be a certified copy as its mentions the date and application number D-0005 given by Registry on application of certified copy - on going through the reasons for delay given in para 4 to 13 of the application for condonation of delay which with time taken in obtaining certified copy can very well be treated as sufficient cause for condoning of delay in filing the appeal beyond 30 days but within the condonable period of 15 days. Thus the delay is condoned. Conclusion - The 15-day delay in filing the appeal is condoned holding that the appeal was filed within the permissible condonable period after excluding the date of pronouncement and the time taken to obtain the certified copy. Application allowed - Now to come up now for hearing of appeal on 21.11.2024.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered by the Tribunal are: (a) Whether the delay of 15 days in filing the appeal can be condoned, particularly in light of the appellant's failure to produce a proper certified copy of the impugned order within the prescribed limitation period. (b) The correct computation of the limitation period for filing an appeal under Section 61 of the Insolvency and Bankruptcy Code (IBC), specifically whether limitation begins from the date of pronouncement of the order or from the date when the appellant obtains a certified copy or knowledge of the order. 2. ISSUE-WISE DETAILED ANALYSIS Issue (a): Condonation of Delay and Certified Copy Requirement Relevant Legal Framework and Precedents: The NCLT Rules and NCLAT Rules govern the procedure for obtaining certified copies and filing appeals. Section 2(a) of the NCLT Rules defines a certified copy, and Rule 50 permits issuance of free copies, but these free copies are not substitutes for certified copies required for filing appeals. The Tribunal referred to the precedent in SBI vs India Power Corporation Ltd, where it was held that a free copy issued under Rule 50 cannot be treated as a certified copy for limitation purposes under Rule 22(2) of the NCLAT Rules. Court's Interpretation and Reasoning: Respondent No.1 contended that the appellant did not pay the requisite fee for obtaining a certified copy, thus the copy annexed to the appeal was only a free copy and not a certified copy as mandated. Therefore, the period taken from the date of application for the certified copy (08.04.2024) to the date of its issuance (15.04.2024) could not be excluded from the limitation period, rendering the appeal barred by limitation. The appellant countered that an application for the certified copy was made immediately after the impugned order on 05.04.2024, with application number D-0005 issued by the Registry on 08.04.2024, and the certified copy was provided on 15.04.2024, albeit marked as a free copy but bearing the application number and date. The Tribunal found this sufficient to dispel confusion and treat the copy as a certified copy for the purpose of limitation. Key Evidence and Findings: The application for the certified copy dated 08.04.2024 with application number D-0005 and the copy annexed to the appeal bearing this number and date were pivotal. The Tribunal also examined the reasons for delay stated in the condonation application, which were found adequate when combined with the time taken to obtain the certified copy. Application of Law to Facts: Given the appellant promptly applied for the certified copy and the Registry issued it within a reasonable time, the delay in filing beyond 30 days but within the condonable 15 days was justified. The Tribunal held that this constituted sufficient cause to condone the delay. Treatment of Competing Arguments: The Tribunal rejected the Respondent's strict interpretation that only paid certified copies qualify for exclusion of delay period. Instead, it accepted the appellant's evidence of procedural compliance and the issuance of the copy with official markings as sufficient. Conclusion: The delay in filing the appeal was condoned, and the copy annexed was accepted as a certified copy for limitation purposes. Issue (b): Computation of Limitation Period under Section 61 of the IBC Relevant Legal Framework and Precedents: Section 61 of the IBC prescribes a limitation period of 30 days from the date of the order for filing an appeal, with a further 15-day condonable period if sufficient cause is shown. Section 238A of the IBC incorporates the Limitation Act, 1963 provisions "as far as may be" applicable to proceedings under the Code. Section 12 of the Limitation Act excludes the day of the event (e.g., pronouncement of the order) from the limitation computation. Precedents considered include:
Court's Interpretation and Reasoning: The Tribunal distinguished between the start of limitation (date of pronouncement) and computation of limitation (excluding the pronouncement day and time for obtaining certified copy). It held that Section 29(2) of the Limitation Act confirms that Sections 4 to 24 apply unless expressly excluded, and the IBC does not exclude these provisions. Section 238A of the IBC mandates applicability of Limitation Act provisions "as far as may be." Section 12(2) of the Limitation Act specifically excludes the day of pronouncement and the time taken to obtain a certified copy from the limitation period calculation. Rule 3 of the NCLAT Rules aligns with this interpretation. Key Evidence and Findings: The Tribunal relied on the dates of the impugned order (05.04.2024), the application for certified copy (08.04.2024), and issuance of the certified copy (15.04.2024). It noted that if the date of pronouncement is excluded, the appeal was filed within the condonable period. Application of Law to Facts: Applying Section 12(2) and Rule 3, the limitation period started on 06.04.2024 (day after pronouncement). The time from 08.04.2024 to 15.04.2024 for obtaining the certified copy was excluded. Hence, the appeal filed within 15 days thereafter was within the permissible condonable period. Treatment of Competing Arguments: The Respondent argued that limitation starts from the date of pronouncement and no exclusion applies for time taken to obtain certified copy unless fee is paid. The Tribunal rejected this narrow view, holding that the Limitation Act provisions apply to exclude the day of pronouncement and time for obtaining certified copy, even if the copy is marked free. Conclusion: The limitation period for filing the appeal commenced from the date of pronouncement, excluding that day and the time taken to obtain the certified copy. The appeal was filed within the condonable period. 3. SIGNIFICANT HOLDINGS "Section 238-A of the Code reads:- 'The provisions of the Limitation Act, 1963 shall, as far as may be, apply to the proceedings or appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal...'" "Sub-section (2) of Section 12 [Limitation Act] makes it clear the date of pronouncement is out of window. This section deals with computation of Limitation and is in the teeth of specific provision of law viz Section 61 of the Code..." "Rule 3 of the NCLAT Rules, 2016 stipulates that the date from which the period of limitation has to be reckoned (i.e. the date of the pronouncement of the order) would have to be excluded. This is in line with Section 12(1) of the Limitation Act, 1963." "A free copy though marked as such but bearing the date and application number given by the Registry on application of certified copy can be treated as a certified copy for the purpose of limitation." "The delay in filing the appeal beyond 30 days but within the condonable period of 15 days is condoned on sufficient cause being shown, including the time taken to obtain certified copy." Core principles established include:
Final determinations: The Tribunal condoned the 15-day delay in filing the appeal, holding that the appeal was filed within the permissible condonable period after excluding the date of pronouncement and the time taken to obtain the certified copy. The copy annexed to the appeal was accepted as a certified copy for limitation purposes. The appeal was thus held to be maintainable and not barred by limitation.
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