TMI Blog2023 (10) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pronounced, it can very well be said that the constructive knowledge has to be imputed to the contents of the order to an aggrieved party. In the present case, when orders were pronounced by the Adjudicating Authority, they cannot be allowed to contend that they are not aware of the order of the Adjudicating Authority. Further, Section 12 of the Limitation Act provides for exclusion of the time taken in obtaining certified copy of an order. After an order is pronounced which pronouncement is well known to the Appellant in the present case, it was open for them to apply for the certified copy of order, even if they are not aware of the contents of the order as per their submissions on that date - Law, thus, clearly provides opportunity to any aggrieved party to obtain certified copy of the order and file an appeal after exclusion of the period obtaining in certified copy of the order. Legislative scheme takes care of all situations where order was pronounced by a Court, it is expected for the parties to diligently apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both the Delay Condonation Applications dismissed. - [ Justice Ashok Bhushan ] Chairperson , [ Barun Mitra ] Member ( Technical ) And [ Arun Baroka ] Member ( Technical ) For the Appellant : Mr. Dhruba Mukherjee, Sr. Advocate with Mr. Abhijeet Sinha, Mr. Kumar Anurag Singh, Mr. Anando Mukherjee, Mr. Shyama Prasad, Mr. Saikat Sarkar Chatopadhyay, Mr. Zain A. Khan and Mr. Morigana Shikhar, Advocates For the Respondent : Mr. Shaunak Mitra, Mr. Kunal Mimani, Mr. Debayan Sen, Mr. Kartikey Bhatt, Mr. Gaurav Khatri, Advocates For the Appellant: Mr. Abhijeet Sinha, Mr. Gaurav Sethi, Mr. Abhinav Tyagi, Mr. Deeptanshu, Advocates. For the Respondents: Mr. J. Rajesh, Mr. Dhrupad Vaghani, Ms. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. This Appeal has been filed against the order dated 12.01.2023 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench-IV in IA 740/MB/-IV/2021 in CP (IB) No.543/MB-IV/2018 by which order the Adjudicating Authority has allowed the IA filed by the Resolution Professional and approved the Resolution Plan. The Resolution Plan was submitted by Aryan Mining Trading Corporation Private Limited , Appellant herein. The Appeal has been e-filed on 11.03.2023. In the Delay Condonation Application being IA No.1956 of 2023, ground taken in the application is that the impugned order was passed on 12.01.2023 and the Appellant applied certified copy of the order on 06.02.2023 and a certified (free of cost) copy was received 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 aro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of the order. Appellant has not applied certified copy of the order nor any material has been enclosed along with the Delay Condonation Application to indicate that the Appellant even applied for certified copy of the order. Limitation shall commence from 08.05.2023 and the Appeal filed on 04.07.2023 is beyond 15 days after expiry of the limitation. 9. Shri Abhijeet Sinha, Learned Counsel for the Appellant in support of the Delay Condonation Application in Company Appeal (AT) (Ins.) No.588 of 2023 submits that the Adjudicating Authority by impugned order dated 12.01.2023 approved the Resolution Plan which was submitted by the Appellant. The plan being approved on that date Appellant has no cause of action to challenge the order or file an 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by an aggrieved person is an essential fact for computation of limitation for filing an Appeal. We have noted the submission of the Counsel for the Appellant in Company Appeal (AT) (Ins.) No.1071 of 2023 that the Adjudicating Authority pronounced the order on 08.05.2023 which was opinion by 3rd Member due to difference in two Members Bench. 3rd Member while agreeing with the view of Technical Member has answered the reference in paragraph 29 of the impugned order. Further, the third Member has directed that the matter shall be placed before the President, NCLT for further course of action. It is contended that the Appellant came to know only when he received the copy of the order by e-mail dated 02.06.2023, thus, the limitation shall be commenced from 02.06.2023. 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paragraph 6 of the judgment, following has been laid down:- 6. There is yet another point which leads to the same conclusion. If the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds six months from the date of the Collector's award occurring in the second part of clause (b) of the proviso would not be appropriate and 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... 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 . Admittedly the award was never communicated to the respondents. Therefore the question before us boils down to this. When did the respondents know the award either actually or constructively? Learned counsel for the appellant has placed very strong reliance on the petition which the respondents made for interim payment of compensation on December 24, 1954. 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 mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the award. It was also held that the knowledge of award may be actually or constructively. It was held by the Hon ble Supreme Court in Raja Harish Chandra Raj Singh (supra) that if the award was pronounced in the presence of the party whose right is affected by it, it can be said to be made when pronounced. It was held that the knowledge of the party affected by the award may be either actual or constructive. In State of Punjab (supra), the Hon ble Supreme Court held that the knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. When a party affected by the award is present at the time when pronouncement of the award knowledge of the contents of the award has to be read constructively to the party, which is the law laid down by the Hon 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing has been laid down:- 31. The import of Section 12 of the Limitation Act and its Explanation is to assign the responsibility of applying for a certified copy of the order on a party. A person wishing to file an appeal is expected to file an application for a certified copy before the expiry of the limitation period, upon which the b time requisite for obtaining a copy is to be excluded. However, the time taken by the court to prepare the decree or order before an application for a copy is made cannot be excluded. If no application for a certified copy has been made, no exclusion can ensue. In fact, the Explanation to the provision is a clear indicator of the legal position that the time which is taken by the court to prepare the decree or order cannot be excluded before the application to obtain a copy is made. It cannot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ploaded on 12-3-2020. However, the mandate of the law is to impose an obligation on the appellant to apply for a certified copy once the order was pronounced by NCLT on 31-12-20193, by virtue of Section 61(2) IBC read with Rule 22(2) of the NCLAT Rules. In the event the appellant was correct in his assertion that a correct copy of the order was not available until 20-3-2020, the appellant would not have received a certified copy in spite of the application till such date and accordingly received the benefit of the suo motu order of this Court which came into effect on 15-3-2020. However, in the absence of an application for a certified copy, the appeal was barred by limitation much prior to the suo motu direction of this Court, even after factoring in a permissible fifteen days of condonation under Section 61(2). The Court is not empowered 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 jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the NCLT much later. Support was sought from a judgment of this Court in Raja Harish Chandra Raj Singh vs. Dy. Land Acquisition officer [1962 (1) SCR 676] for submitting that provisions relating to limitation have to be given a liberal construction. The judgment that is relied upon by the Respondent No. 1 relates to Section 18 of the Land Acquisition Act. However, we are concerned with the limitation prescribed by Section 61 of the IBC which fell for consideration of this Court in Kalpraj Dharamshi (supra). In the said judgment, it was categorically held by this Court that an appeal against the order of NCLT shall be preferred within a period of 30 days from the date on which the order was passed by the NCLT. The Appellate Tribunal has the power to extend the period of limitation by another 15 days. In view of the aforesaid judgment, 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 judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction would not be appropriate. It is fair and just that a decision is communicated to the party whose rights will ultimately be affected or who will be affected by the decision. The knowledge, either actual or constructive, of the party affected by such a decision, is an essential element which must be satisfied before the decision can be brought into force. Thus construed, the making of the award cannot consist merely of the physical act of writing an 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. A literal or mechanical way of construing the words from the date of the Collector's award was held to be unreasonable. The Court assigned a practical meaning to the expression by holding it as meaning the date when the award is 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 construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for them to apply for the certified copy of order, even if they are not aware of the contents of the order as per their submissions on that date. Certified copy of the order could have been very well obtained by them and time taken in preparing the certified copy of the order is required to be excluded. It is the scheme of the Limitation Act, 1963 which has been held to be applicable in the IBC proceeding. Law, thus, clearly provides opportunity to any aggrieved party to obtain certified copy of the order and file an appeal after exclusion of the period obtaining in certified copy of the order. Legislative scheme takes care of all situations where order was pronounced by a Court, it is expected for the parties to diligently apply for certified copy of the order in event there may be any chance to file an appeal. 33. In view of the foregoing discussions, we are of the view 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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