TMI Blog2024 (3) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... [ 2023 (12) TMI 1249 - SUPREME COURT] comes to aid of the Appellant. As noticed in Sanjay Pandurang Kalate both the counsels were present and there was no dispute between the counsel that no substantive order was passed on 17th May, 2023 by the Adjudicating Authority whereas in the present case order was dictated on 09th November, 2023 which is clear from the report submitted by the Registrar of NCLT. When the order was dictated in the presence of the Learned Counsel for the appellant he cannot be heard in saying that Appellant is not aware of the order and limitation shall not commence from the date of the order and the limitation shall commence only from the date when order is uploaded. In the present case, the order having been dictated on 09th November, 2023, limitation shall commence from 10th November, 2023 and 30 days period shall come to an end on 09th December, 2023 and 15 days condonable period shall also come to an end on 24th December, 2023 whereas the Appeal was e-filed on 27th December, 2023 i.e. beyond 15 days condonable period. The Appeal having been field beyond 15 days after expiry of the limitation, the delay condonation application cannot be allowed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that order was delivered on the said date. In the facts of this case, ends of justice the serve in calling a report from Registrar of the NCLT, Mumbai Bench as to when the order was delivered and what is the date when it was uploaded. Let, the report be submitted within 10 days. List this Appeal on 21st February, 2024. 6. In pursuance of the order, a report has been forwarded by Assistant Registrar along with report of Court Officer dated 16.02.2024 which report is as follows: To, The Dy Registrar NCLT, Mumbai Subject: Order dated 08.02.2024 passed by the Hon ble NCLT in Company Appeal (AT) Ins. No. 25 of 2024 titled Mayur Ratilal Suchak Anr. Vs. Birendra Kumar Agarwal Sir, 1. It is intimated that as per the court records the order dated 09.11.2023 in IA/3445/2023 in CP(IB)/979(MB)/2022 by NCLT, Mumbai Bench Court-V was dictated on board in open court to the knowledge of the Ld. Counsel s and the order was uploaded on 22nd November, 2023. 2. This is four your information and necessary action. Yours sincerely (Sandeep Kumar) Court Officer V 7. We have heard Mr. Krishnendu Dutta, Learned Sr. Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble period. In the above case, the case was listed not for pronouncement of judgment but was listed for admission. By the query of the court, both the counsel in the above case has stated before the Supreme Court that no substantive order was passed on 17th May, 2023. The said fact has been noticed in paragraph 19-20 of the Judgment. It is useful to quote paragraph 19 to 21 of the Judgment: 19. In the present case, the cause list for 17 May 2023 placed on record by the appellant indicates that the case was listed for admission and not for pronouncement. Further, on a specific query of the Court, it is not in dispute between counsel for the appellant and the respondent, that no substantive order was passed on 17 May 2023 by the NCLT. In these circumstances, limitation would not begin to run on 17 May 2023 which was the date on which hearings concluded. As no order was passed before 30 May 2023, there was no occasion for the appellant to lodge an application for a certified copy on 17 May 2023. Time for filing an appeal would commence only when the order appealed from was uploaded since prior to that date no order was pronounced. 20. In V Nagarajan (supra), there was an un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der was passed in the presence of the learned counsel for the appellant and I.A. filed by the Appellant was rejected, it was open for the Appellant to apply for certified copy of the order diligently. Learned Counsel for the Appellant has submitted that NCLT was closed for Deepawali Vacation hence appellant could have applied for certified copy at best on 10th November, 2023 or thereafter on 20th November, 2023 there being vacation from 11th November, 2023 to 19th November, 2023. When the order is dictated in the open court in the presence of learned counsel for the Appellant, limitation shall start running after the day of the passing of the order. In the present case, 10th November, 2023 which was a working day, mere fact that certified copy was not applied and according to the Appellant he applied for certified copy on 22nd November, 2023 in no manner help the Appellant in exclusion of the period of limitation. As per Section 12 of the Limitation Act, the period which was taken for preparation of certified copy can be excluded in the computation of the limitation. In the present case, certified copy of the order has not been annexed however according to the Appellant certified c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t commence on the date when Appellant became aware of contents but it shall commence when order was pronounced. 16. Learned Counsel for the parties have also referred to the Judgment of the Hon ble Supreme Court in the matter of V. Nagarajan Vs. SKS Ispat and Power Limited Ors, (2022) 2 SCC 244. 17. Learned Counsel for the Appellant submits that in the above case the order was pronounced in the presence of the both the parties and Hon ble Supreme Court held that the limitation does not commence from uploading of the order. It is submitted that Hon ble Supreme Court observed that certified copy of the order has to be diligently applied. Learned Counsel for the Appellant submits that in the present case the Appellant did not immediately apply for certified copy of the order and after the Court opened after vacation there was only delay of one or two days in applying the certified copy of the Order on basis of which it cannot be held that Appellant was not diligent. 18. Learned Counsel for the Respondent has relied on Paragraph 32 of the Judgment and submits that mandate of the law is to impose an obligation on the appellant to apply for a certified copy of the Order. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [Union of India v. Popular Construction Co., (2001) 8 SCC 470; Singh Enterprises v. CCE, (2008) 3 SCC 70; Chhattisgarh SEB v. CERC, (2010) 5 SCC 23; Bengal Chemists Druggists Assn. v. Kalyan Chowdhury, (2018) 3 SCC 41 : (2018) 2 SCC (Civ) 30] . 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
