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TMI Blog2023 (10) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... Nandita Bajpai, Mr. Ajiz M.K., Mr. Tushar Goel, Advocates for RP. JUDGMENT Ashok Bhushan , J. 1. These are two Applications praying for Condonation of Delay in the Appeals filed under Section 61 of the IBC challenging the order passed by the Adjudicating Authority. We now proceed to notice the facts of each case and the grounds taken in the Applications for Condonation of Delay. Company Appeal ( AT ) ( Insolvency ) No. 1071 of 2023 2. This Appeal has been filed against the order dated 08.05.2023 passed by the Adjudicating Authority (National Company Law Tribunal), Kolkata Bench-II, Kolkata in IA (IB) No.1054/KB/2020 in TP(IBC)/1/(KB)/2023 (C.P. (IB) No. 771/(KB)/2023, whereby Learned Member Technical (3rd Member) delivered his opinion on difference of opinion in two Members forming the Division Bench. 3. The Appeal has been e-filed on 04.07.2023. In the Application praying for Condonation of Delay, it is stated that the order was pronounced by the Adjudicating Authority on 08.05.2023 but copy of the order was neither provided to the Appellant nor uploaded on the website. The Appellant claim to have addressed an e-mail on 15.05.2023 for providing a copy of the order. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Appellant on 08.02.2023. It is stated in the Application that sometime was taken to review of the impugned order and discussing and deliberating upon filing of an Appeal before this Tribunal to the extent that the NCLT did not allow the various concessions, reliefs and dispensations sought by the Appellant at Annexure VI to its Resolution Plan. The Appellant could provide instructions to prepare for filing the accompanying appeal on or around 20.02.2023. Thereafter, the Appellant's legal counsel commenced drafting of the Appeal and the first draft was circulated on 01.03.2023. Certified copy of the order was dispatched to the Appellant's Counsel which was received on 27.02.2023. The draft appeal was thereafter internally reviewed by the Appellant and approved on 10.03.2023. Thereafter, the Appeal was filed on 11.03.2023. The Appellant's case is that the date of limitation shall start from when Appellant received the copy of the order, hence, there is a delay of only one day in filing the Appeal. 6. We have heard Shri Dhruba Mukherjee, Sr. Advocate and Shri Abhijeet Sinha, Learned Counsel for the Appellant and Shri Shaunak Mitra, Learned Counsel for the Respondent in Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal. Appellant when received the copy of the order on 08.02.2023, it came to know that various concessions, reliefs and dispensations sought by the Appellant have not been granted. It is submitted that the right of Appeal arises only when contents of the order are known to the Appellant. When the contents of the order were not known to the Appellant, there was no occasion to apply for certified copy of the order and file an Appeal and cause of action for filing an Appeal only arose when Appellant received the copy of the order and the Appeal having been filed on 11.03.2023, there is a delay of only one day. 10. Learned Counsel for the Respondents refuting the submissions contends that the order was pronounced on 12.01.2023 in the presence of the Counsel for the Appellant, hence, the Appellant cannot take plea that he was not aware of the contents of the order. The order being pronounced in presence of the Counsel for the Appellant, period of limitation shall commence from the date when order was pronounced. It is submitted that plea of the Appellant that limitation shall commence from 08.02.2023 when he received copy of the order cannot be accepted. It is submitted that accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. Similarly, in support of the Delay Condonation Application in Company Appeal (AT) (Ins.) No.588 of 2023, it is submitted by Shri Abhijeet Sinha that on 12.01.2023 order was pronounced by the Adjudicating Authority that Resolution Plan has approved but Appellant was not aware as to what reliefs and concessions of the Appellant have not granted and the order was communicated to the Appellant only on 08.02.2023 and then Appellant came to know that he has cause of action for filing an Appeal. Thus, the limitation for filing the Appeal shall be commenced from 08.02.2023. 16. Learned Counsel for the Appellant in support of the above submissions has placed reliance on three Judgments of the Hon'ble Supreme Court. First Judgment is relied by Counsel for the Appellant is "Harish Chandra Raj Singh vs. The Deputy Land Acquisition Officer and Ors.- AIR 1961 SC 1500". In the above case, the question which arose for consideration was limitation for filing a reference under Section 18 of the Land Acquisition Act 1894. Proviso to Section 18 prescribed a period of limitation for filing a reference under Section 18. Section 18 with its proviso is as follows:- "18. Reference to Court. - (1) An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riting the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly if without notice of the date of its pronouncement an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice the expression "the date of the award" used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words "from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 954. He has pointed out that the learned Subordinate Judge relied on this petition as showing the respondents' date of knowledge and there are no reasons why we should take a different view. It seems clear, to us that the ratio of the decision in Raja Harish Chandra case (supra) is that the party affected by the award must know it, actually or constructively, and the period of six months will run from the date of that knowledge. Now knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under Section 12(2) of the Act, the party must be obviously fixed with knowledge of the contents of the award whether he reads it or not. Similarly when a party is present in court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act we think that knowledge of the award must mean knowledge of the essential contents of the award. Looked at from that point of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court in the above case. 22. The present is a case where order is pronounced by the Adjudicating Authority in accordance with the statutory Rules namely- National Company Law Tribunal Rules, 2016. In the facts of both the above Appeals, we have noticed that the orders were pronounced by the Adjudicating Authority in presence of Counsel for the Appellant, thus, the knowledge of the order has to be constructively communicated on the Appellant and it is not open for the Appellant that they were not aware of the contents of the order. Limitation for filing of the Appeal does not commence on the date when Appellant became aware of contents but it shall commence when order was pronounced. 23. The Hon'ble Supreme Court in "V. Nagarajan vs. SKS Ispat and Power Limited and Ors.- (2022) 2 SCC 244" has elaborately considered the question of all aspects of limitation for filing an Appeal under Section 61 of the IBC. In paragraph 16 of the judgment, two issues were noticed in following manner:- "16.1. (i) when will the clock for calculating the limitation period run for appeals filed under IBC; and 16.2. (ii) is the annexing of a certified copy mandatory for an appeal to NC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot be said that the right to receive a free copy under Section 420(3) of the Companies Act obviated the obligation on the appellant to seek a certified copy through an application. The appellant has urged that Rule 14 of the NCLAT Rules empowers NCLAT to exempt parties from compliance with the requirement of any of the rules in the interests of substantial justice, which has been typically exercised in favour of allowing d a downloaded copy in lieu of a certified copy. While it may well be true that waivers on filing an appeal with a certified copy are often granted for the purposes of judicial determination, they do not confer an automatic right on an applicant to dispense with compliance and render Rule 22(2) of the NCLAT Rules nugatory. The act of filing an application for a certified copy is not just a technical requirement for computation of limitation but also an indication of the diligence of the aggrieved party in pursuing the litigation in a timely fashion. In a similar factual scenario, NCLAT had dismissed an appeal21 as time-barred under Section 61(2) IBC since the appellant therein was present in court, and yet chose to file for a certified copy after five months of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpowered to condone delays beyond statutory prescriptions in special statutes containing a provision for limitation." 27. The Hon'ble Supreme Court in "V. Nagarajan" (supra) has also referred to earlier judgment of the Hon'ble Supreme Court in "Kalpraj Dharamshi vs. Kotak Investxment Advisors Ltd.- (2021) 10 SCC 401" wherein in paragraph 53 of the judgment, the Hon'ble Supreme Court noticing Section 61 of the IBC has observed that an appeal will have to be preferred within a period of 30 days from the date on which the order was passed by the NCLT. Paragraph 53 is as follows:- "3. Since there is a period different from the one which is prescribed by the Schedule to the Limitation Act, the limitation for an appeal would be governed Section 61 of the I&B Code, which is a special statute. As such, an appeal will have to be preferred within a period of thirty days from the date on which de order was passed by NCLT. However, if NCLAT is satisfied, that there was sufficient cause for not filing the appeal within a period of thirty days, it may allow an appeal to be filed within a further period of fifteen days. As such, the normal period of limitation prescribed under the I&B Code is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, we are of considered view that the Appellate Tribunal committed an error in issuing notice in an appeal that was filed by Respondent No.1 with delay of 388 days. The appeal is, accordingly, allowed. Pending application(s), if any, shall stand disposed of." 29. Learned Counsel for the Appellant has also relied on the judgment of the Hon'ble Supreme Court in "D. Saibaba vs. Bar Council of India and Anr.- (2003) 6 SCC 186". In the above case, Review Petition was filed by the Appellant was rejected as barred by time and the Hon'ble Supreme Court has occasion to examine Section 48-AA of the Advocates Act, 1961. Contention was raised in the Appeal that right to review can be exercised only when order is known or communicated to the aggrieved person. The Hon'ble Supreme Court has held that the expression "the date of that order" as occurring in Section 48-AA has to be construed as meaning the date of communication or knowledge of the order. The Hon'ble Supreme Court also in the said case has referred to judgment of "Raja Harish Chandra Raj Singh" (supra). In paragraphs 9 and 10, following was held:- "9. So far as the commencement of the period of limitation for filing the review ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either communicated to the party or is known by him either actually or constructively." 30. The Hon'ble Supreme Court in the same judgment in paragraph 14 has also held that the expression "the date of that order", therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed. In paragraph 14 of the judgment, following was held:- "14. How can a person concerned or a person aggrieved be expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words "the date of that order", therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed." 31. In the present case, orders passed by the Adjudicating Authority were pronounced in the open Court in the presence of the Counsel for the Appellant. In any view of the matter, they cannot contend that they do not have even constructive knowledge of the order on the said date. Knowledge of the order has to be actual or constructive knowledge and when the orders are pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that Question (i) has to be answered in following manner:- The limitation for filing an Appeal under Section 61 shall commence from the date when the order is pronounced and not from the date when aggrieved party or Appellant claims to have knowledge of the contents of the order. Question No.(ii) 34. It is undisputed that the order was pronounced on 08.05.2023. The order clearly notices the presence of the Counsel who appeared on the date physically/ video conferencing. It is not denied by the Appellant that the order was pronounced on 08.05.2023. The submission of the Appellant that he came to know about the contents of the order only when order was received by an e-mail dated 02.06.2023 as noticed above. The Hon'ble Supreme Court in "V. Nagarajan" (supra) and "Kalpraj Dharamshi vs. Kotak Investxment Advisors Ltd." (supra) already held that the limitation for filing an appeal under Section 61 shall commence from the date of the order. We have already held while considering Question No.(i) that the limitation shall not commence when aggrieved party or Appellant came to know of the contents of the order. The Appeal having been filed on 04.07.2023 i.e. after 15 days from expiry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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