9911796707
TMI Blog2024 (3) TMI 929X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal', Bengaluru Bench, while passing the 'Impugned Order', dated 25.05.2023 in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018 (Filed by the 'Respondent No. 1 / Appellant'), under Section 9 of the I & B Code, 2016, among other things, at Paragraph Nos. 12 to 16, had observed the following: 12. "Moreover on perusal of the relationship note sent by the Respondent No.1 to Liquidator which is attached along with the rejoinder it is seen that Respondent No. 1 had invested up to Rs. 55 crores by subscribing to 5500 redeemable secured non-convertible debentures of Rs. 1,00,000/- each. Accordingly, respondent No. 1 falls within the purview of ' financial institution' as mandated under section 45 (i) (c) (i) and 45 (I) (c) (ii) of Reserve Bank of India Act, 1934. 13. It is pertinent to point out that there has been no objection filed on behalf of respondent No. 2, and accordingly this Tribunal forfeited the right to file objection on 25.08.2022. Further, on perusal of the documents submitted by the Liquidator it is seen that respondent No. 2 vide email dated 17.04.2020 has informed that the charge over the properties of the Corporate Debtor will not be relinquished to the Liq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent 1, 2 and 3 have to defray their portion of Liquidation Process Costs in terms of Regulation 2A of the IBBI (Liquidation Process) Regulations, 2016." and disposed of the IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018 accordingly. Appellant's Submissions : 3. The Learned Counsel for the Appellant submits that the Appellant / 1st Respondent in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, on 25.05.2023 was called upon to contribute their portion of 'Liquidation Process Costs', when such costs are neither due nor payable from the Appellant as the Appellant has chosen to opt out of the 'Liquidation Process', to realise its 'Security Interest'. 4. According to the Appellant, it is representing 'Debenture Holders', who are 'Secured Financial Creditors', and neither the 'Appellant' nor the 'Debenture Holders', are 'Financial Institutions', and as per Regulation 2A of the IBBI (Liquidation Process) Regulations, 2016, the 'Appellant', cannot be called upon to pay these 'Liquidation Costs', let alone to pay these 'costs upfront'. 5. The Learned Counsel for the Appellant contends that the 'Appellant', is not a Financial Creditor, who is a 'Financial Instituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 17.02.2020 and in IA No. 116 / 2020, filed by the 'Resolution Professional' of the 'Corporate Debtor', the 'Adjudicating Authority' / 'Tribunal', was pleased to pass an 'Order', dated 13.03.2020 for Liquidation of the 'Corporate Debtor' and the '1st Respondent', was appointed as the 'Liquidator'. As a matter of fact, the Appellant has while being on the 'Committee of Creditors', contributed various Sums (to the tune of approximately INR Rs. 18 Lakhs), towards 'CIRP costs', but till date, not received its 'Share of Reimbursement' of those costs. 10. It is projected on the side of the Appellant that the 1st Respondent, after being appointed as 'Liquidator', by this 'Tribunal', through an 'Order', dated 13.03.2020, issued Public Announcement in Form B of Schedule II of the Liquidation Process Regulations, calling for 'submission of the Claims', on or before 17.04.2020. The Appellant, acting on behalf of the 'Debenture Holders', filed its 'Claim', dated 17.04.2020, in Form D of Schedule II, wherein the 'Appellant', has specifically mentioned that it is not relinquishing its 'Security Interest', and that it chose to stand outside the 'Liquidation Estate', and realise its 'Security In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yer at the earliest and no reply was received from the 1st Respondent / Liquidator to this letter and this non-cooperative and a lackadaisical attitude of the 1st Respondent / Liquidator has not only stalled the Transaction Process, but also, impleaded the whole process, undertaken by the 'Appellant' for taking possession of selling and disposing off the 'Securities', exclusively created in their favour. 15. According to the Appellant, it preferred an Application, in IA No. 178 / 2022, seeking appropriate directions against the Liquidator, under Section 52(5) of the I & B Code, 2016, which is still pending adjudication. Since, the Liquidator had acted in complete breach of fiduciary obligations to the Corporate Debtor and had failed to protect the interests of the 'Corporate Debtor', and its 'Creditors'. 16. The Appellant had filed an Interlocutory Application, seeking replacement of 'Liquidator' of the 'Corporate Debtor', and an 'Application', seeking replacement of the 'Liquidator' of the Corporate Debtor and removal of '1st Respondent / Liquidator', and the said Application is numbered as IA No. 472 / 2022, before the 'Adjudicating Authority / Tribunal', and is still pending a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the RBI Act, as a 'Company', 'Corporation' or a 'Co-operative Society'. 22. The functions performed by the Appellant and the Debenture Holders it represents are set out below, will indicate that the 'Appellant', the 'Debenture Holders', cannot qualify to be considered as 'Financial Institutions'. Entity Name Entity Kind Nature of Functions Relevant Annexures Essel Finance Advisors and Managers LLP Limited Liability Partnership under the LLP Act, 2008 Scheme Sponsor and Investment Manager for India Asset Growth Fund and India Asset Growth Fund II, undertaking fund management activities and investments in funds on behalf of persons/entities whose funds it manages. Claim Form Annexure - G (Pg 121) Relationship Note Annexure - U (Pg 30 of rejoinder) India Asset Growth Fund Alternative Investment Fund registered by SEBI Category-II Alternative Investment Fund registered with SEBI and regulated by SEBI AIF Regulations, primarily investing in senior, secured, unrated, unlisted and redeemable non-convertible debenture instruments. Certificate of Registration Annexure-K (Pg 185) Relationship Note Annexure - U (Pg 30 of rejoinder) India Asset Growth Fund II Alternative Investm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany and may be termed as a 'non-banking institution', it is not in the business of Financing and in fact, is mainly in the business of Minerals as is set out in the main 'Clauses of the Memorandum of Association'. As such, Elegant Marbles and Granite Industries Limited, also cannot come within the meaning of a 'Financial Institution'. 25. According to the Appellant, even the provisions of Clauses 8 & 10 of the 'Ancillary Objects of the MOA', as pointed out by the Learned Counsel for the 'Liquidator', does not aid their arguments, since Clause 8 is relatable to the 'business', which the Company is authorized to 'carry on', and Clause 10 pertains to 'Issue of Debentures', by the 'Company', and not the 'Subscription of Debentures'. 26. The Learned Counsel for the Appellant points out that neither the 'Appellant' nor the 'Debenture Holders', it acts on behalf of the fall within the definition of Non-banking Institution, under Section 45-I(e) of the RBI Act and hence, not liable to contribute towards 'Liquidation Costs'. 27. The Learned Counsel for the Appellant points out that the 'Committee of Creditors', in their '12th Meeting', that took place on 13.02.2020 has explicitly state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant points out that the calculation of Liquidation Costs, provided by the 'Liquidator', is not as per what is permitted under the Code and applicable Regulations. Further, the 'Appellant', continues to stand outside the 'Liquidation Estate' and enforce its 'Security Interest', on its own. Resultantly, the Liquidator, cannot be permitted to treat the 'Security Interest' of the Appellant, as part of the 'Liquidation Estate'. 33. The Learned Counsel for the Appellant, while summing up, prays for allowing of the instant 'Appeal', by setting aside the 'Impugned Order', dated 25.05.2023 in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, passed by the 'Adjudicating Authority', National Company Law Tribunal', Bengaluru Bench. 1st Respondent / Liquidator's Contentions: 34. The Learned Counsel for the 1st Respondent / Liquidator submits that the 'Adjudicating Authority' / 'Tribunal', while passing the 'Impugned Order', in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, had adhered to the provisions of the I & B Code, 2016, and the Liquidation Regulations, by taking into consideration the 'Order' of this 'Tribunal', dated 16.03.2022, in State Bank of India V. Navjit Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n-Banking Institution', is defined as under: 45-I e) "non-banking institution" means a company, corporation or co- operative society; f) "non-banking financial company" means- i) a financial institution which is a company; (ii) a non-banking institution which is a company and which has as its principal business the receiving of deposits, under any scheme or arrangement or in any other manner, or lending in any manner; (iii) such other non-banking institution or class of such institutions, as the Bank may, with the previous approval of the Central Government and by notification in the Official Gazette, specify." 37. According to the 1st Respondent, the Appellant has filed a 'Claim' on behalf of the Eduskill Realtors LLP, which is a 'Limited Liability Partnership' as well as Elegant Marbles and Granite Industries which is a Private Limited and hence, the question of them being non-banking financial institution will not arise. Further, the Learned Counsel for the 1st Respondent / Liquidator proceeds to point out that the Appellant was the Member of the 'Committee of Creditors' of the 'Corporate Debtor', on the basis of Investment made of Rs.55 Crores, by subscribing '55 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aragraphs, it becomes abundantly clear that the Resolution Professional was following the procedure as set out in the Liquidation Process Regulations with regard to the disposal of secured assets, including the HSIIDC Bawal Property in which SIDBI has expressed its intent to realise its security interest. It also becomes clear that due to misinterpretation and lack of proper understanding of the procedure, SIDBI was unable to follow the requirements as was being communicated to him by the liquidator and, hence the liquidator had to approach the Adjudicating Authority thrice in the course of liquidation to seek necessary directions qua the Appellant. We also find that such difficulties being faced by the liquidator were being brought to the knowledge of the Stakeholders' Consultation Committee and necessary directions for further actions were being obtained by the liquidator. .... 21. It thus becomes quite clear that compliance of regulations 2(ea), 2-A, 21-A and 37 of the Liquidation Process Regulations and Section 52/53 of the IBC are absolutely necessary even if the secured creditor proceeds to realise its security interest." 42. The Learned Counsel for the 1st Responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August, 2022." "20. We have noticed above that statutory scheme provides submission of claim on a liquidation commencement date which is a fixed connotation. When a statute provides for liquidation commencement date as a date up to which claims can be filed and proved, no claim thereafter can be entertained by the Liquidator. The amount of interest which was retained by the Appellant claiming to be interest in addition to the claim as filed by it in Form D till the date of realization of receipt of the sale, cannot be permitted to be retained by the Appellant and the Adjudicating Authority has rightly passed the order allowing application filed by the Liquidator to hand over the additional amount to the Liquidator. Learned Counsel for the Appellant submits that out of Rs. 1.84 Crores, amount of Rs. 20 Lakhs have already been paid." 43. The Learned Counsel for the 1st Respondent / Liquidator contends that the instant 'Appeal', is filed without applying for the 'Certified Copy' of the 'Impugned Order', and no explanation is given on behalf of the Appellant. In this regard, the Learned Counsel for the 1st Respondent, refers to the Judgment dated 22.10.2021 of the Hon'ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 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." 45. The Learned Counsel for the 1st Respondent / Liquidator, while winding up, submits that the 'Impugned Order', dated 25.05.2023, in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, passed by the 'Adjudicating Authority / NCLT', Bengaluru Bench, in observing that the 'Respondent Nos. 1, 2 & 3', have to defray their portion of 'Liquidation Process Costs', in terms of Regulation 2A of the IBBI (Liquidation Process) Regulations, 2016, is free from any legal infirmities. Evaluation : 46. Before the 'Adjudicating Authority' / 'NCLT', Bengaluru Bench, the '1st Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the light of the extant provisions of the IBBI." 50. It comes to be known that the 1st Respondent / Liquidator, as per Regulation 12 of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016, made a Public Announcement in FORM - B of the Schedule - II on 17.03.2020 in Deccan Herald and Prajavani and stipulated the last date of submission of Claim as 17.04.2020. 51. The Respondents, filed their 'Claims' in prescribed FORM - D as the 'Financial Creditors' with the 1st Respondent / Liquidator. During the 'CIRP', the Respondents were the 'Financial Creditors', constituting the 'Committee of Creditors'. Before the 'Liquidation Order', being passed by the 'Adjudicating Authority / Tribunal', in the '12th Meeting' of the 'Committee of Creditors', convened on 13.02.2020, the 'Committee of Creditors', had approved a sum of Rs.98,77,020/- (for twelve months), to be contributed to the 'Liquidation Cost Account' and the following are details : Resolution For Approval of Liquidation Costs "RESOLVED THAT Regulation 2A of IBBI (Liquidation Process) Regulations, 2016, it is hereby approved to contribute the excess of the liquidation costs over the liquid assets ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent / Appellant, through an email dated 03.04.2020, had informed the 1st Respondent / Petitioner / Liquidator, that 'they are not liable to pay the 'Liquidation Costs', as they do not fall under the category of 'Financial Institutions'. 55. According to the 1st Respondent / Liquidator, the Respondents are 'Financial Institution', falling within the meaning of the term, 'Financial Institution', and Section 2 (14) of the I & B Code, 2016, defines a 'Financial Institution', as under: (14) "financial institution" means- (a) a scheduled bank; (b) financial institution as defined in section 45-I of the Reserve Bank of India Act, 1934 (2 of 1934); (c) public financial institution as defined in clause (72) of section 2 of the Companies Act, 2013 (18 of 2013); and (d) such other institution as the Central Government may by notification specify as a financial institution." 56. Continuing further, according to the 1st Respondent / Liquidator, the 'Financial Institution', is defined as per Section 45-I of the RBI Act, 1934, which reads as under: "(c) "financial institution" means any non-banking institution which carries on as its business or part of its business any of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated Claim', through an 'email', dated 17.04.2020, pursuant to the 'commencement of Liquidation of the Corporate Debtor' and further, informed the Petitioner / 1st Respondent / Liquidator that a 'hard copy of the Claim Form', shall be submitted, once 'Lock Down', is lifted. 60. Furthermore, through an email dated 17.04.2020, the 2nd Respondent / India Bulls Asset Reconstruction Company Limited had informed the 1st Respondent / Petitioner / Liquidator that being a 'Financial Creditor' the 2nd Respondent have an exclusive 'Charge' / 'Mortgage', over the 'properties' of the 'Corporate Debtor'. Also that, the 2nd Respondent / India Bulls Asset Reconstruction Company Limited, had informed that the 'Charge', over the Property, will not be relinquished to the 'Liquidation Estate', and they will proceed under SARFAESI Act 2002, for the 'Sale of the Properties of the Corporate Debtor'. 61. Apart from the above, the 2nd Respondent, had informed the 1st Respondent / Petitioner that any 'excess proceeds', from the Property of the 'Corporate Debtor', will be paid to the Petitioner / 1st Respondent and the 'Relinquishment Letter', will be provided, after the 'Lock Down', is lifted. 62. The 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeds', as per Section 53(1)(a), the 'Liquidation Process Costs', shall be recovered from the 'Sale Proceeds' of the 'Assets' and also that Regulation 2A of the Liquidation Process Regulations, 2016, apply to the Financial Institutions. Besides that, the 3rd Respondent / Phoenix ARC Private Limited, had stated that they wished to 'opt out of the Liquidation', however, they being an 'ARC', they are not liable to pay 'Liquidation Process Costs'. 67. Indeed, because of the 'Lock Down', in the meanwhile, the 1st Respondent / Petitioner / Liquidator, had filed an IA No. 277 / 2020, seeking exclusion of period from 25.03.2020 to 22.07.2020, from the 'Liquidation Process Period', and that the 'Adjudicating Authority' / 'Tribunal', through an 'Order', dated 21.08.2020, was pleased to exclude the period from 25.03.2020 to 22.07.2020, from the 'Liquidation Process Period'. 68. Through a letter dated 26.08.2020, the 1st Respondent / Petitioner / Liquidator, had informed the Appellant / 1st Respondent, and 'their respective Share of Liquidation Costs of Rs.1,91,96,224/-' (Rupees One Crore Ninety One Lakhs Ninety Six Thousand Two Hundred and Twenty Four Only), which includes the approved Liqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 months 145.00 From To Net Fees On the first 1 crore 1.88 - 1.00 1.00 0.02 On the next 9 crores 1.40 1.00 9.00 8.00 0.11 On the next 40 crores 0.94 10.00 40.00 30.00 0.28 On the next 50 crores 0.48 40.00 50.00 10.00 0.05 On further sums realized 0.10 50.00 145.00 95.00 0.10 Sub-total 0.56 TOTAL FEES 1.66 72. The 1st Respondent / Petitioner / Liquidator, had informed the 3rd Respondent / Phoenix ARC Private Limited, through letter dated 26.08.2020, their 'respective Share of Liquidation Costs of Rs.36,74,771/-', (which includes, the 'approved Liquidation Costs and Liquidator Fee') and requested to 'remit their respective Share as a whole' or 'at least 30%' within '5 days, from the issuance of the Letter'. In fact, the 1st Respondent / Petitioner / Liquidator, had provided the Liquidator's Fee Estimate, as per Letter dated 26.08.2020, as per Regulation 4(2)(b) of the Liquidation Process Regulations, 2016. 73. Later, the 3rd Respondent / Phoenix ARC Private Limited, on 09.09.2020, had 'paid the pro-rata Share of the Approved Liquidation Cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016, and hence, is not liable to contribute towards 'Liquidation Costs', as per Regulation 2A of the Liquidation Process Regulations. 80. The other contention of the Appellant / 1st Respondent, before the 'Adjudicating Authority' / 'Tribunal' in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018 is that for an 'Entity', to come within the definition of 'Financial Institution', under Section 45-I of the Reserve Bank of India Act, 1934, it ought to be a 'Non-banking Institution', and 'ought to 'carry on', as its 'business' or 'part of its business', any of the various activities mentioned in Section 45-I. 81. Furthermore, according to the Appellant / 1st Respondent, it is a 'Scheme Sponsor' and 'Investment Manager', which acts for the 'benefit of the 'Debenture Holders' and its 'Nominee'. In fact, the Appellant / 1st Respondent is an 'Limited Liability Partnership', set up under the LLP Act, 2008 and hence, the Appellant / 1st Respondent cannot be construed, by any stretch of imagination to be a 'Non-Banking Institution', as defined under Section 45-I of the Reserve Bank of India Act, 1934. 82. The Appellant / 1st Respondent, before the 'Adjudicating Authority' / 'Tribunal', ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king Order' and the 'Adjudicating Authority' / 'Tribunal', had failed to consider that the 'Appellant', has Business or part of its Business, does not carry any of the activities mentioned in Section 45-I of the RBI Act, 1934. 87. The prime contention of the Appellant, is that when the 'pre-condition of being a Financial Institution', was not satisfied, the 'Appellant', cannot be called upon, to contribute towards 'Liquidation Costs'. 88. The Learned Counsel for the Appellant points out that the 'Impugned Order' of the 'Adjudicating Authority' / 'Tribunal', calls upon the 'Appellant', being a 'Financial Creditor', who is not a 'Financial Institution', to pay 'upfront Liquidation Costs', when such contribution / sums by 'Secured Creditors', who stand outside the 'Liquidation Estate', are not even contemplated, under the I & B Code, 2016. 89. The Learned Counsel for the Appellant, points out that the 'Adjudicating Authority' / 'Tribunal', had failed to consider the repercussions of the 'Impugned Order', in as much as the 'Secured Financial Creditors', who 'opt out of the Liquidation Process', are 'liable to pay Exorbitant Liquidation Costs', before even realising their interest, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of this 'Tribunal', in State Bank of India V. Navjit Singh dated 16.03.2022 (vide Comp. App (AT) (INS) No. 151 of 2022), wherein it was held that 'even if the Secured Creditor proceeds to realise its Security Interest it is liable to pay fee as contemplated under Regulation 21 A(2)(a). Further, Hon'ble NCLAT in the case of 'Small Industries Development Bank of India v. Shri Vijender Sharma', dated 02.11.2022, in Company Appeal (AT) (Insolvency) No. 1027 of 2021, held that compliance of regulations 2 (ea), 2-A, 21-a and 37 of the Liquidation Process Regulations and Section 52/53 of the IBC are absolutely necessary even if the Secured Creditor proceeds to realise its Security Interest', and opined that the Respondent Nos. 1, 2 & 3 were to defray their portion of 'Liquidation Process Costs', in terms of Regulations 2A of the IBBI (Liquidation Process) Regulations, 2016, and the IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, was 'disposed of', accordingly. 92. It is not out of place for this 'Tribunal', to make a significant mention that 'reasons' are the 'Heart & Soul' of an 'Order', passed by an 'Adjudicating Authority' / 'Tribunal'. A 'reasoned Order', will have an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quidation Process Regulations, 2016', the Appellant as a 'Financial Creditor' and also a 'Financial Institution', is required to pay the 'Liquidation Process Costs', in the event such 'Financial Creditor', exercising its right to enforce its 'Security', in the teeth of the ingredients of Section 52 of the I & B Code, 2016. Continuing further, it must be borne in mind that there is nothing in the I & B Code, 2016 or the Regulation, which provides for extension / elongation of time, to pay the 'Liquidation Costs', especially when the exercise of right by the 'Secured Creditor' is pressed into service, in terms of the 'Code'. 98. The Learned Counsel for the 1st Respondent / Liquidator / Petitioner points out that the instant 'Appeal', is filed without the 'certified copy' of the 'Impugned Order', made in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, dated 25.05.2023 and the Appellant has not given any reason for the same. 99. The Learned Counsel for the 1st Respondent / Liquidator / Petitioner, refers to the Judgment of Hon'ble Supreme Court in V. Nagarajan v. SKS Ispat & Power Ltd. & Ors. (vide Civil Appeal No. 3327 / 2020 dated 22.10.2021), wherein, at Paragraph 21, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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." 101. At this stage, this 'Tribunal', aptly points out Rule 22 (1), (2) & (3) of the NCLAT Rules, 2016, which reads as under: "22. Presentation of appeal.- (1) Every appeal shall be presented in Form NCLAT-1 in triplicate by the appellant or petitioner or applicant or respondent, as the case may be, in person or by his duly authorised 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." 102. As a matter of fact, it is only the time required if the 'Application', is made that can be excluded as a time requisite, as per decision in Umda V. Rupchand AIR 1929 Nag. 1 (F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellants (Petitioners in IA No. 1007 / 2023) that the copy of the 'Impugned Order' in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, was passed on 25.05.2023 and the same was uploaded on the 'Adjudicating Authority / Tribunal's Website and further, the Appellants, have accessed the 'Impugned Order' on 29.05.2023 and seek 'Leave', to produce a copy of the 'Impugned Order', as uploaded on the Website of the 'Adjudicating Authority' / 'Tribunal', and undertakes to apply for and obtain a 'Certified Copy' of the 'Impugned Order', if and when, directed by this 'Appellate Tribunal'. 108. It is to be remembered that the Rule 14 of the NCLAT Rules, 2016, enjoins the 'Appellate Tribunal', under the caption 'power to exempt', to exempt the 'Parties', from compliance with any requirement of these 'Rules', and may give such directions in matters of practice and procedure, as it may consider just and expedient on the Application, moved in this behalf to render 'substantial justice'. The 'discretionary waiver', is not an automatic exception, but, an 'Application', is to be moved on behalf of the 'concerned Petitioners', ofcourse, showing 'sufficient cause' and in this regard, the 'Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he special character of the I & B Code, 2016. 114. To put it succinctly, the filing of a 'Certified Copy' ('Paid Cost Copy'), is not an empty ritualistic formality, in the considered opinion of this 'Tribunal'. It cannot be gainsaid that only when the 'Petitioner / Appellant / Aggrieved Party', applies within the 'prescribed period of Limitation', as envisaged, under Section 61 (2) of the 'Code', the time taken to secure the 'Certified Copy', will be excluded from the 'Computation of Period of Limitation'. 115. In the present case on hand, before this 'Tribunal', the Appellants in Comp. App (AT) (CH) (INS) No. 332 of 2023, had furnished the 'Free of Cost Copy' of the 'Impugned Order', dated 25.05.2023, passed by the 'Adjudicating Authority' / 'NCLT', Bengaluru Bench, in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018 ('Certified' to be 'True Copy' of the 'Original'). 116. In terms of Rule 22(2) of the NCLAT Rules, 2016, a 'Certified Copy' of the 'Impugned Order', shall accompany every 'Appeal' to be filed, before the 'Office of the Registry'. Only in a 'Paid Certified Copy', by an 'Aggrieved Party', the details Viz. when the Application for Certified Copy of the Impugned O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners', by an 'Application', to file the 'Certified Copy' of the 'Impugned Order', by 'not exhibiting any sufficient cause', yet this 'Tribunal', at the final stage of the disposal of the instant 'Appeal', keeping in mind of the 'substantive objective' of the 'I & B Code', 2016, exercising its inbuilt and an inherent power, directs the 'Appellants', to file the 'Certified Copy' of the 'Impugned Order', within two weeks, from the 'date of Pronouncement of this Judgment', for meeting the 'ends of Justice', and to prevent an 'Aberration of Justice', and answers accordingly. 121. Be that as it may, in the light of detailed foregoing deliberations, this 'Tribunal', on a careful consideration of respective contentions, advanced on either side, and considering the entire conspectus of the attendant facts and circumstances of the instant case, in an encircling manner, comes to an irresistible conclusion that the 'Impugned Order', dated 25.05.2023 in IA No. 399 / BB / 2020 in CP (IB) No. 189 / BB / 2018, passed by the 'Adjudicating Authority' / 'NCLT', Bengaluru Bench, in directing the 'Appellants', '1st Respondent' and 'two other Respondents', to 'Defray their portion of Liquidation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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