9911796707
Advanced Search 
TMI Blog2023 (12) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal, Mumbai ["NCLT"] on the ground of limitation. 3. At the outset, it is clarified that the findings in this judgement are limited to a determination of the question of limitation. The detailed facts and averments on the merits of the larger dispute between the parties are not analysed in the judgment. 4. Briefly, respondent 1, Vistra ITCL (India) Limited filed an application under Section 7 of the IBC seeking the initiation of the Corporate Insolvency Resolution Process ["CIRP"] against Evirant Developers Private Limited, the Corporate Debtor. The appellant is a former director of the Corporate Debtor, who alleges that the Section 7 application filed by respondent 1 is based on collusion with the various respondents, including respondent 2 and respondent 3, who are former directors of the Corporate Debtor. The appellant filed an interlocutory application before the NCLT alleging inter alia that the reply to the Section 7 application on behalf of the Corporate Debtor was filed by respondent 2 without authorization of the Board of Directors or intimation to the appellant. 5. On 17 May 2023, the NCLT heard the application filed by the appellant. From the submissions and on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al against the order has been dismissed by the NCLAT on 05 October 2023. 9. The table below indicates the relevant dates: Date Event 17.05.2023 The appellant's interlocutory application was heard by the NCLT. However, no order was pronounced. 30.05.2023 The order dismissing the above interlocutory application was uploaded on the website of the NCLT. However, the order bears the date of 17.05.2023 (date of hearing) 30.05.2023 The appellant applied for a certified copy of the NCLT order. 01.06.2023 The appellant received a certified copy of the NCLT Order. 29.06.2023 30-days from the date of upload of the NCLT Order. 10.07.2023 The appellant e-filed the appeal before the NCLAT. 10. The right to file an appeal against an order of the NCLT before the NCLAT arises from Section 61 of the IBC, which is in the following terms: "61. Appeals and appellate authority - (1) Notwithstanding anything to the contrary contained under the Companies Act 2013, any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal. (2) Every appeal under sub-section (1) shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 61(2) of the IBC. 14. On the facts of the case, the Court noted that the appeal was barred by limitation as the appellant did not even attempt to secure a certified copy and only relied on the date of uploading the order on the website. Significantly, in the case, there was a pronouncement on the date mentioned on the order and the appellant did not dispute his presence before the NCLT when the order was pronounced in open court. Speaking through one of us (D.Y. Chandrachud, J), the Court held as follows: "33. The answer to the two issues set out in Section C of the judgment- (i) when will the clock for calculating the limitation period run for proceedings under IBC; and (ii) is the annexation of a certified copy mandatory for an appeal to NCLAT against an order passed under IBC - must be based on a harmonious interpretation of the applicable legal regime, given that IBC is a Code in itself and has overriding effect. Sections 61(1) and (2) IBC consciously omit the requirement of limitation being computed from when the "order is made available to the aggrieved party", in contradistinction to Section 421(3) of the Companies Act. Owing to the special nature of IBC, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be excluded from the calculation of limitation, provided the appellant applies within the prescribed period of limitation under Section 61(2) of the IBC. The Court held: "28. In the present case, the application for a certified copy was sent from Delhi to Chennai on 2 September 2022, which was received on 5 September 2022, within the period of limitation of 30 days specified in Section 61(2). This aspect lies in contrast to the facts as they obtained before this Court in the judgment in V Nagarajan (supra) where even the application for obtaining the certified copy was not filed. In the present case, the appellant exercised due diligence and applied for a certified copy upon pronouncement of the order in terms of Rule 22(2) of the NLCAT Rules 2016. The certified copy was provided to the appellant on 15 September 2022. Hence, the period of 10 days between 5 September 2022 and 15 September 2022 taken by the court to provide a certified copy of the order ought to be excluded when determining the period of limitation under Section 61(2) of the IBC. 29. In view of the above discussion, we have come to the conclusion that the NCLAT was in error in dismissing the appeal on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (4) The Tribunal, may transmit order made by it to any court for enforcement, on application made by either of the parties to the order or suo motu. (5) Every order or judgment or notice shall bear the seal of the Tribunal. 151. Pronouncement of order by any one member of the Bench.-(1) Any Member of the Bench may pronounce the order for and on behalf of the Bench. (2) When an order is pronounced under this rule, the Court Master shall make a note in the order sheet, that the order of the Bench consisting of President and Members was pronounced in open court on behalf of the Bench." (emphasis supplied) 18. The above provisions of the NCLT Rules, 2016 make a clear distinction between the 'hearing' of an appeal and the 'pronouncement' of the order. Rule 150(1) provides that after hearing the parties, the order may be pronounced either at once or soon thereafter, as may be practicable, but not later than thirty days from the final hearing. Further, Rule 151 indicates that a member of the bench may pronounce the order for and on behalf of the Bench. When the order is pronounced, the court master shall make a note in the order sheet to that effect. The language of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of e-filing of the appeal and not filing of the physical copy of the appeal stops the limitation from running. One of us (D.Y. Chandrachud, J.) had occasion to observe that the requirement of e-filing followed by physical filing results in duplication of effort and is a disincentive for e-filing. The Court held that: "30. [...] Moreover, it is utterly incomprehensible why NCLAT should insist on physical filing in addition to e-filing. This unnecessarily burdens litigants and the Bar and is a disincentive for e-filing. A lawyer or litigant who is compelled to file physical copies in addition to e-filed documents will have no cogent reason to resort to e-filing. This duplication of effort is time consuming. It adds to expense. It leaves behind a carbon footprint which is difficult to efface. The judicial process has traditionally been guzzling paper. This model is not environmentally sustainable. If some judges are uncomfortable with e-files, the answer is to provide training to them and not to continue with old and outmoded ways of working. The judiciary has to modernize and adapt to technology. The tribunals can be no exception. This can no longer be a matter of choice. The I ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
