TMI Blog2022 (7) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by the Registry. It will lead to uncertainty regarding date of filing. When statutory consequences are provided, there has to be certainty regarding such consequences. We cannot accept any interpretation, which may lead to uncertainty regarding the date of filing, resulting in uncertainty, regarding enforcement of the Interim Moratorium - The statutory scheme, thus, does not in any manner support the submission of learned Counsel for the Appellant. Numbering of Application is essential for different purpose and cannot be equated with the filing as contemplated by the Rules. Hon ble Supreme Court in M/S. SURENDRA TRADING COMPANY VERSUS M/S. JUGGILAL KAMLAPAT JUTE MILLS COMPANY LIMITED AND OTHERS [ 2017 (9) TMI 1566 - SUPREME COURT ], which was a case where Hon ble Supreme Court had occasion to consider various provisions of the Code, where it was held that first stage is the filing of the application and thereafter the stage of scrutinizing the application for finding out the defects. The second stage is when Registry is to scrutinize the defect, which cannot be treated as first stage. The submission of the learned Counsel for the Appellant that when there are defects in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the facts in Company Appeal (AT) (Insolvency) No. 721 of 2022 for deciding all these three Appeal(s). 3. The State Bank of India filed an Application under Section 95, sub-section (1) on 01.10.2021 before the Adjudicating Authority, which Application came to be subsequently numbered as Case No. CP-IB 111 of 2022. The Appellant Krishan Kumar Basia, the Guarantor of M/s. Gee Ispat Private Limited, Corporate Debtor also filed an Application under Section 94 on 25.10.2021, which was registered as CP-IB 788/2021. The Application under Section 95 by State Bank of India was filed earlier in point of time, but the Application filed by Personal Guarantor was registered earlier in point of time. In the Application, Guarantor had filed an affidavit submitting the facts, to which a counter affidavit was also filed. Both the parties have filed written submissions before the Adjudicating Authority. The Guarantor submitted that Application under Section 94, which was filed on 25.10.2021 was registered first in point of time, as compared to the Application filed under Section 95. It is submitted that any petition, which is presented to the Registry and contain defects, is a petition, which ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia was presented in the Registry on 01.10.2021 and the Application under Section 94 was filed by the Personal Guarantor on 25.10.2021, but the Application of the Guarantor was numbered on 22.12.2021, that is prior to numbering of Application of State Bank of India, which could be done only on 18.02.2022. Hence, the Application under Section 94 being prior in time the Moratorium shall kick in. It is submitted that Adjudicating Authority committed error in holding that Application of State Bank of India was filed on 01.10.2021. 7. The learned Counsel for the Respondent refuting the submissions of learned Counsel for the Appellant submits that Rule 2, sub-Rule 14 of NCLT Rules itself provide that filed means filed in the office of the Registry of the Tribunal, hence, when the Application is filed in the Office of the Registry of the Tribunal, it is filed within the meaning of Rules and the submission of learned Counsel for the Appellant that Application can be treated to be filed only when it is numbered is without any basis and is contrary to the Scheme under the statutory Rules. It is submitted that Application under Section 95(1) filed by the State Bank of India on 01.10.2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document format in a data storage device such as compact disc or a USB flash drive acceptable to the Adjudicating Authority. 11. The above Rule makes it clear that procedure for filing of Application by Guarantor or Creditor under Rules 6 and 7 of 2019 Rules, is the same. As per Rule 10, sub-rules (a) (b), Rules 20 to 24 and 26 of Part-III of NCLT Rules, which are made applicable. 12. Now we revert to Rule 20 to 24. Rule 20 deals with the procedure , which is to the following effect: 20. Procedure.-(1) Every appeal or petition or application or caveat petition or objection or counter presented to the Tribunal shall be in English and in case it is in some other Indian language, it shall be accompanied by a copy translated in English and shall be fairly and legibly type written, lithographed or printed in double spacing on one side of standard petition paper with an inner margin of about four centimeter width on top and with a right margin of 2.5. cm, and left margin of 5 cm, duly paginated, indexed and stitched together in paper book form; (2) The cause title shall state Before the National Company Law Tribunal and shall specify the Bench to which it is prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal shall be accompanied by an index in triplicate containing their details and the amount of fee paid thereon. (4) Sufficient number of copies of the appeal or petition or application shall also be filed for service on the opposite party as prescribed under these rules. (5) In the pending matters, all applications shall be presented after serving copies thereof in advance on the opposite side or his authorised representative. (6) The processing fee prescribed by these rules, with required number of envelopes of sufficient size and notice forms shall be filled alongwith memorandum of appeal. Rule 23, sub-rule (1) provides that every application etc. be presented in triplicate by the appellant in the prescribed form with stipulated fee at the filing counter . 13. Section 96 of the Code uses the expression when an application is filed under Section 94 and 95 . What is the meaning of filing an Application under Section 94 and 95 is the question to be answered in these Appeal(s). Rule 2, sub-rule (14) of the NCLT Rules itself defines the word filed , which is to the following effect: (14) filed means filed in the office of the Registry of the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ins.) No.316 of 2021 decided on 12th August, 2021. 16. The expression filing is defined in several statutes. We may first notice the dictionary meaning of filing. In P Ramanatha Aiyar Advanced Law lexicon (6th Edition Vol. 2, D-1) defines the filing as follows: Filing. Delivery of a paper to the proper officer to be kept on file; placing and leaving a paper among the files; placing a paper in the proper official custody; presenting a paper at the proper office and leaving it there, deposited with the papers in such office; placing a paper in the proper official s custody by the party charged with this duty, and the making of the proper indorsement by the officer. 17. The expression filing has been used in NCLT Rules; IBC, as well as 2019 Rules as noted above. Rule 10 deals with filing of application and documents. Rule 10, in turn refers to Rule 20 to 24 and 26 of NCLT Rules. Rule 10, sub-rule (2) further provides that Application and accompanying documents shall be filed in electronic form, as and when such facility is made available. In the facts of the present case, it is clear that electronic facility is available in the NCLT, Principal Bench, New Delhi, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , thus, does not in any manner support the submission of learned Counsel for the Appellant. Numbering of Application is essential for different purpose and cannot be equated with the filing as contemplated by the Rules. 19. We may also refer to the judgment of Hon ble Supreme Court in Surendra Trading Company vs. Juggilal Kamlapat Jute Mills Company Ltd. and Ors. (2017) 16 SCC 143, which was a case where Hon ble Supreme Court had occasion to consider various provisions of the Code. Hon ble Supreme Court noticed the various stages as indicated from the provisions of the Code. Paragraph 23 and 23.1, which is relevant, is to the following effect: 23. Various provisions of the Code would indicate that there are three stages: 23.1. First stage is the filing of the application. When the application is filed, the Registry of the adjudicating authority is supposed to scrutinise the same to find out as to whether it is complete in all respects or there are certain defects. If it is complete, the same shall be posted for preliminary hearing before the adjudicating authority. If there are defects, the applicant would be notified about those defects so that these are removed. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oticed Rule 22 to 24 and 26 of NCLT Rules. The observations in paragraph 39, on which reliance has been placed by the learned Counsel for the Appellant cannot be said to contain any ratio that the date of filing an Application is the date when the Application is numbered by the Tribunal. 23. In this reference, we may notice one judgment of the Hon ble Supreme Court in (2006) 2 SCC 777 Vidyawati Gupta and Ors. vs. Bhakti Hari Nayak and Ors. The Hon ble Supreme Court in the above case had occasion to consider the question as to when a plaint is treated to be filed. The High Court had occasion to consider the rules, provisions of CPC as well as Calcutta High Court (Original Side) Rules. In the above case, a suit was filed before the Original Side of the Calcutta High Court on 26.07.2002. An interim injunction was also granted on 02.04.2004 by the learned Single Judge. An Appeal was filed before the Division Bench, where a submission was made that the plaint was not filed in accordance with the provisions of Order 6 as amended from 01-07-2002, hence the plaint could not have been entertained and interim injunction granted by Single Judge is without jurisdiction. The said contentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been duly instituted within the meaning of sub-rule (3) of Rule 1 Order 4 of the Code. It was urged that the entire proceedings from the filing of the plaint and the entertaining of the interlocutory applications by the learned Single Judge was without jurisdiction and was liable to be declared as such. The findings of the Division Bench of the Calcutta High Court has been noted in paragraph 26 : 26. After considering the various provisions of the Code along with the relevant amendments introduced in the Code with effect from 1-7-2002 and the relevant provisions of the letters patent and after considering various decisions cited at the Bar, in particular the decision of this Court in State of M.P. v. M.V. Narasimhan [(1975) 2 SCC 377 : 1975 SCC (Cri) 589 : AIR 1975 SC 1835] the appeal court came to the conclusion that the instant case stood on a different footing from the various decisions cited in view of the express provisions of Order 4 Rule 1(3) of the Code, as amended. Relying on the interpretation of the expression duly used in Order 4 Rule 1(3) in a decision of this Court in LIC of India v. D.J. Bahadur [(1981) 1 SCC 315 : 1981 SCC (L S) 111] and the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... render the plaint invalid and that such defect or omission was curable and plaint shall also date back to the presentation of the plaint. In paragraph 50, the Hon ble Supreme Court also held that amendments were procedural in nature and non-compliance therewith would not automatically render the plaint as non-est. In paragraph 50 and 55 following has been laid down: 50. The intention of the legislature in bringing about the various amendments in the Code with effect from 1-7-2002 were aimed at eliminating the procedural delays in the disposal of civil matters. The amendments effected to Section 26, Order 4 and Order 6 Rule 15, are also geared to achieve such object, but being procedural in nature, they are directory in nature and non-compliance therewith would not automatically render the plaint non est, as has been held by the Division Bench of the Calcutta High Court. 55. The appeal is accordingly allowed and the impugned order under challenge is set aside. Consequent upon the views expressed by us, the plaint as filed on behalf of the appellants herein must be deemed to have been presented on 26-7-2002 and not on 28-4-2004 and the interim order passed by the learned S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
