TMI Blog2022 (9) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 26 envisages the re-presentation of the appeal after removal of the defects notified to the Appellant. Section 61(2) of the Code provides that appeal under Section 61(1) shall be filed within 30 days before the NCLAT. The expression filing as occurring in Section 61(2) is for filing of the appeal/presentation of the appeal. Hon ble Supreme Court in INDIAN STATISTICAL INSTITUTE VERSUS M/S ASSOCIATED BUILDERS AND ORS. [ 1977 (12) TMI 142 - SUPREME COURT ] laid down that condonation of delay as prescribed in an appeal is different from petition for excusing the delay in re-presentation. It is well accepted principle of statutory interpretation that if the meaning of words is plain effect must be given to it. The statute at best declare intent of Legislature. If the Legislature or Rule making Authority intended provision of limitation for re-presentation/refiling the same could have been done in unambiguous words - the limitation prescribed for filing an appeal under Section 61 and Section 421 of Companies Act cannot be imported while considering condonation of delay in refiling/ representation. The law laid down by this Tribunal in MR. JITENDRA VIRMANI VERSUS MRO-TEK ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondents : Mr. Alok Dhir and Mr. Karan Batura, Advocates For the Appellant : Mr. Sanjib Kumar Mohanty, Mr. Akhilesh Sharma, Mr. Subesh Kumar Sahoo and Mr. Akash Sharmaand Ms. P.S. Chandralekha, Advocates For the Respondents: Mr. Aditya Gauri and Mr. Amar Vivek, Advocates for R-1 ORDER ASHOK BHUSHAN , J. This larger bench has been constituted to answer following two questions referred by a three-member bench of this Tribunal by its order dated 12.08.2022: (a) Whether the law laid down by this Tribunal in Mr. Jitendra Virmani Vs. MRO-TEK Realty Ltd. Ors and three Member Bench Judgement in Arul Muthu Kumaara Samy Vs. Registrar of Companies that when the defect in appeal is cured and the Appeal is refiled before the Appellate Tribunal beyond seven days, the date of re-presentation of the Appeal shall be treated as a fresh Appeal, lays down correct law? (b) Whether the limitation prescribed for filing an Appeal before this Appellate Tribunal under Section 61 of Insolvency and Bankruptcy Code, 2016 or Section 421 of the Companies Act, 2013 shall also govern the period under which a defect in the Appeal is to be cured and this Appellate Tribunal shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e defects are not removed within seven days, the re-presentation of the appeal after removal of defects beyond 7 days shall be treated as fresh appeal. The first presentation of the appeal is the date which is to be reckoned for the purpose of computation of limitation in filing of appeal and the re-presentation of the appeal has no bearing on the question of computation of limitation. The judgments of this Tribunal in Mr. Jitendra Virmani Vs. MRO-TEK Realty Ltd. Ors and Arul Muthu Kumaara Samy Vs. Register of Companies holding that when the defects in the appeal is cured after 7 days and the appeal is represented, the appeal shall be treated as a fresh appeal does not lay down correct law. Learned counsel for the Appellant further submits that filing of appeal and re-presentation of the appeal with the Registry are two different concepts which have two different consequences. Under the Code or Rules, no limitation has been provided for re-presentation (refiling). The period of limitation provided under Section 61 of the Code and Section 421 of the Companies Act, 2013 are applicable with regard to filing of the appeal and the said limitation cannot be applied for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorised representative duly appointed in this behalf in the prescribed form with stipulated fee at the filing counter and non-compliance of this may constitute a valid ground to refuse to entertain the same. (2) Every appeal shall be accompanied by a certified copy of the impugned order. (3) All documents filed in the Appellate Tribunal 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. (5) In the pending matters, all other applications shall be presented after serving copies thereof in advance on the opposite side or his advocate or authorised representative. (6) The processing fee prescribed by the rules, with required number of envelopes of sufficient size and notice forms as prescribed shall be filled along with memorandum of appeal. 9. Rule 26 deals with Endorsement and Scrutiny of Petition or Appeal or Document , which rule has come up for consideration and interpretation in the present appeal. Rule 26 is as follows: 26. Endorsement and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period of 7 days cannot be said to be mandatory period. The scheme of Rule 26 also does not indicate that when the appeal is re-presented after removal of the defects after 7 days, the appeal is to be treated as an appeal filed afresh. 11. In respect of the above submissions, one of the Judgements which have been relied by the Learned Counsel for the Respondent is two Member Judgement in the matter of Mr. Jitendra Virmani (supra). In the above case, the Appeal was filed against the Order dated 05th January, 2017, Copy of the Order was served on the Appellant on 07th January, 2017 however the Appellant could file the Appeal (defective) only on 31st March, 2017. On 31st March, 2017, the Registry pointed out the defects which were noticed by the Appellant on 3rd April, 2017. Appellant did not cure the defect within seven days as prescribed in Rule, 26(2). This Appellate Tribunal passed an Order on 03rd May, 2017 dismissing the Appeal on the ground of the delay. The Order dated 03rd May, 2017 is extracted in paragraph 1 of the Judgment which is to the following effect: The Interlocutory Application under Rule 11 of the National Company Law Appellate Tribunal Rules, 2016 (h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve the defects particularly when the Appellate court has no power to condone delay after 90 days of receipt of judgement which expired on 7th April 2017 in the present case. 13. This Appellate Tribunal ultimately dismissed the Appeal holding that refiling on 01st May, 2017 was beyond the period of 90 days from the date of receipt of Judgement and hence the Appellate Tribunal has no jurisdiction to entertain the Appeal. Paragraph 23 and 24 is as follows: 23. Curiously, even when defects were pointed out by the registry on 31stMarch 2017, why they sat tight over the matter for 31 days in removing the defects. 24. Though it was open to the applicant to file a petition before Appellate Tribunal with prayer to ignore the minor defects, no such application was filed by appellant. The appeal was taken back on 3rd April 2017 and they re-filed on 1StMay 2017 i.e. beyond the period of 90 days from the date of receipt of judgement passed by Tribunal, when Appellate Tribunal had no jurisdiction to entertain the appeal. 14. The next Judgment relied on by the Learned Counsel for the Respondent is Arul Muthu Kumaara Samy (supra). In the above case, Appeal under Section 42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tendra Virmani and no separate reasoning has been given as to why appeal shall be treated as fresh appeal if it is filed beyond 7 days period prescribed for removal of defects. 17. The filing of appeal (presentation) and refiling (re-presentation) are two different concepts and have been separately dealt with in the Rules. Rule 22 deals with the presentation of the appeal whereas Rule 26 envisages the re-presentation of the appeal after removal of the defects notified to the Appellant. Section 61(2) of the Code provides that appeal under Section 61(1) shall be filed within 30 days before the NCLAT. The expression filing as occurring in Section 61(2) is for filing of the appeal/presentation of the appeal. 18. Hon ble Supreme Court in Indian Statistical Institute vs. M/s Associated Builders Ors, (1978) 1 SCC 483 laid down that condonation of delay as prescribed in an appeal is different from petition for excusing the delay in re-presentation. In Para 11 following has been laid down: 11. In a recent judgment of this Court delivered on August 3, 1977 in Mahant Bikram Dass v. Financial Commissioner and Ors.,(1) it is pointed out that the petition under section 5 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns under Section 34 of the Arbitration and Conciliation Act, 1996 (for short Act ). The award was delivered on 29.10.2012. Admittedly, the objections under Section 34 were filed within the time stipulated under Section 34 of the Act. However, since there was objections, time was granted on 23.1.2013 by the Deputy Registrar of the High Court to remove the objections within a period of 7 days. This was not done. 2. Eventually, the appellant re-filed the matter on 21.3.2013. the explanation given by the appellant is that the amount of court fees to the extent of Rs.8,94,000/- was to be arranged and that took some time. The appellant is the Northern Railway and while it is difficult to condone such inefficiency which seems to be a persistent reality with the organisation, such as the Northern Railway, that took time in arranging even the small things. 3. Mr. Amarjeet Singh Chandiok, learned senior counsel appearing for the respondent submitted that Section 34(3) of the Act bars refiling beyond the period stipulated therein. The said sub-Section reads as follows: 34(3) An application for setting aside may not be made after three months have elapsed from the date on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applies to the initial filing of the objections under Section 34 of the Act. It was submitted on behalf of the respondent that Rule 5(3) of the Delhi High Court Rules states that if the memorandum of appeal is filed and particular time is granted by the Deputy Registrar, it shall be considered as fresh institution. If this Rule is strictly applied in this case, it would mean that any re-filing beyond 7 days would be a fresh institution. However, it is a matter of record that 5 extensions were given beyond 7 days. Undoubtedly, at the end of the extensions, it would amount to re-filing. 22. At this stage, we may notice the Rule 5(3) of Delhi High Court Rules as referred to in Para 4 of the judgment. Rule 5 (1), (2) (3) inserted in Delhi High Court Rules w.e.f. 01.12.1988 is as follows: Rule 5(1) The Deputy Registrar/Assistant Registrar, In-charge of the Filing Counter, may specify the objections (a copy of which will be kept for the Court Record) and return for amendment and re-filing within a time not exceeding 7 days at a time and 30 days in the aggregate to be fixed by him, any memorandum of appeal, for the reason specified in Order XLI, Rule 3, Civil Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany Law Appellate Tribunal: Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days. 421. Appeal from the orders of Tribunal. (1) Any person aggrieved by an order of the Tribunal may prefer an appeal to the Appellate Tribunal. (2) No appeal shall lie to the Appellate Tribunal from an order made by the Tribunal with the consent of parties. (3) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order of the Tribunal is made available to the person aggrieved and shall be in such form, and accompanied by such fees, as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period. (4) On the receipt of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson Co. Ltd.8 Lord Reid pointed out as to what is the meaning of ambiguous and held that: (AC p.735) A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning. It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. PatanjaliSastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose9, had held that it is not a sound principle of construction to brus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find any support from the NCLAT Rules, 2016 or the Code and Companies Act, 2013 to the submission of learned counsel for the Respondent that limitation prescribed for filing an appeal shall also govern the limitation for re-presentation/refiling. We may also refer to the judgment of Hon ble Delhi High Court in Delhi Development Authority v. Durga Construction, 2013 (139) DRJ 133 [DB] , where the question of condonation of delay in refiling came for consideration. An application for refiling was rejected. Paras 1and 2 of the judgment notice the facts and the issue involved, which is to the following effect: 1. The appellant has preferred the present appeal impugning the order dated 06.04.2011 passed by a learned Single Judge of this court in O.M.P. No.89/2009 (hereinafter referred as the impugned order ). By the impugned order, the learned Single Judge has dismissed the application bearing I.A. No.1711/2010 filed by the appellant under section 151 of CPC for condonation of delay of 166 days in re-filing the Objections under section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act ). 2. The controversy involved in the present case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teps in this regard. It cannot be, thus, assumed that the party has given up his rights to avail legal remedies. However, in certain cases where the petitions or applications filed by a party are so hopelessly inadequate and insufficient or contain defects which are fundamental to the institution of the proceedings, then in such cases the filing done by the party would be considered non est and of no consequence. In such cases, the party cannot be given the benefit of the initial filing and the date on which the defects are cured, would have to be considered as the date of the initial filing. A similar view in the context of Rules 1 2 of Chapter IV of the Delhi High Court (Original Side) Rules, 1967 was expressed in Ashok Kumar Parmar v. D.C. Sankhla: 1995 RLR 85, whereby a Single Judge of this Court held as under:- Looking to the language of the Rules framed by Delhi High Court, it appears that the emphasis is on the nature of defects found in the plaint. If the defects are of such character as would render a plaint, a nonplaint in the eye of law, then the date of presentation would be the date of re-filing after removal of defects. If the defects are formal or anci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h regard to the same. A liberal approach in condoning the delay in refiling an application under section 34 of the Act is not called for as it would defeat the purpose of specifying an inelastic period of time within which an application, for setting aside an award, under section 34 of the Act must be preferred. 33. We, thus, are of clear opinion that limitation prescribed for filing an appeal under Section 61 and Section 421 of Companies Act cannot be imported while considering condonation of delay in refiling/ representation. We may, however, hasten to add that condonation of delay in refiling/re-presentation has to be examined on case to case basis. As noticed above, the criterion for considering an application for condonation of delay under Section 5 may not be strictly applicable when question of condonation of delay in refiling/re-presentation arises. A party who is exercising its right to file a statutory appeal in time has not to be shut out on some procedural or technical defects and when defects notified have been removed although with some delay, question to be considered is as to whether there was justifiable cause for delay or not. The time period allowed for rem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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