TMI Blog2024 (3) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication has been filed. Rule 2(14) defines filed means filed in the office of the registry of the Tribunal. There is not even pleading that any application was filed for certified copy of the Order. Whether Appellant was entitled to file an application for obtaining certified copy of the order passed on 10.11.2023? - HELD THAT:- A party means a person who prefers an appeal or application or petition. The present is a case where Section 7 Application was filed by the Appellant- State Bank of India on which CP(IB) No. 3025/2019 was registered. When Appellant is a party to the main company petition, it does not appear to be reason that he cannot make an application for certified copy of the order in I.A. passed in the same company petition which was filed by the Appellant. All I.As filed in the same company petition by different parties are I.As in the Company Petition and when main Company Petition has been filed by the Appellant, it cannot be said that Appellant was not entitled to apply for certified copy of the Order passed in Company Petition or in I.A.s including I.A. No. 127 of 2022. Hon ble Supreme Court in V. Nagarajan Vs. SKS Ispat and Power Limited Ors, [ 2021 (10) TMI 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal opinion on the issue of filing an appeal which took some time and caused delay which was neither intentional nor mala fide. Hence, the appellant is seeking condonation of additional 15 days period as provided under the statute which expires on 26.12.2023. 4. It is humbly submitted that this Hon ble Appellate Tribunal was closed for Christmas holidays from 24.12.2023 to 01.02.2024. Thus, the period of limitation was available till 02.02.2024. The Appeal was e-filed on 29.12.2023, during the period when this Hon ble Appellate Tribunal was on holidays. 4. An Additional Affidavit in support of delay condonation application has been filed by the Appellant where it was pleaded that on 10.11.2023, I.A. No. 127 of 22 was listed under the category of ordinary list . At the time of hearing, NCLT indicated that I.A. would be disposed of however order was not pronounced in the open court and when the Order was uploaded on the website of NCLT between 09.12.2023 to 12.12.2023 it was further pleaded that Advocate representing the Bank made an attempt on 20th November, 2023 to file a Precipe for obtaining certified copy of the Order with the Registry of NCLT however counsel for the Applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er made an application to obtain certified copy of the Order. 6. We have considered the submissions of Learned Counsel for the parties and have perused the record. 7. The Impugned Order dated 10.11.2023 which is passed in I.A. No. 127 of 22 is as follows: IA 127/2022 Ld. Counsel for the Applicant submits that prayer in IA 127/2022 pertains to convening of the CoC meeting, which has already been held in view of the directions of this Bench and appropriate resolution has been passed. However, the Counsel for SBI intervening in the application, submits that CoC ought not to have passed a resolution setting out the distribution mechanism amongst the class of creditors in terms of the earlier plan approved by the CoC and if the voting was to take place it ought to have been on the whole plan. In view of above, the IA 127/2022 is disposed of as infructuous. 8. The Order Impugned Itself indicates that counsel on behalf of the Appellant who is referred as intervening in application was present and order was passed in presence of counsel for the Appellant. The order having pronounced in the presence of the counsel for the Appellant, he cannot be heard in claiming that Appellant was not awar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 11. In the above case, from the Judgment it is clear that Hon ble Supreme Court held that on the date 17.05.2023, no substantive order was pronounced. Hon ble Supreme Court in para 20 has observed 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 the above circumstances, Court held that limitation shall not begin to run from 17.05.2023 which was a date when hearing was concluded. There is a clear difference in the present case from the case of the Hon ble Supreme Court decided in Sanjay Pandurang Kalate. In the present case, order itself noticed that orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elation to a copy of a document as hereunder;- (a) certified as provided in section 76 of the Indian Evidence Act, 1872; or (b) certified as provided in section 6 of Information Technology Act, 2000; or (c) certified copy issued by the Registrar of Companies under the Act; (d) copy of document as may be a downloaded from any online portal prescribed under section 398 of the Act or a photo copy of the original pertaining to any company registered with the Office of the Registrar of Companies of the concerned State duly certified by a legal practitioner or a chartered accountant or a cost accountant or a company secretary; (12) fee means the amount payable in pursuance of the provisions of the Act and these rules for any petition or application or interlocutory application or a document or for certified copy of document or order of the Tribunal or such other paper as may be specified in Schedule of Fees to these rules and includes any modifications as may be made thereto or any fee as prescribed for filing of documents to the Tribunal by these rules; (14) filed means filed in the office of the Registry of the Tribunal; (16) party means a person who prefers an appeal or application or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for certified copy of the order in I.A. passed in the same company petition which was filed by the Appellant. All I.As filed in the same company petition by different parties are I.As in the Company Petition and when main Company Petition has been filed by the Appellant, it cannot be said that Appellant was not entitled to apply for certified copy of the Order passed in Company Petition or in I.A.s including I.A. No. 127 of 2022. Further the definition of party under Rule 2(16) is an inclusive definition. Appellant is very well covered and he being person interested on any order passed in I.A. No. 127 of 2022 filed in the Company Petition, we thus hold that Appellant was fully entitled to apply for certified copy of the order and the rules in no manner prohibit the Appellant to make an application. 23. As observed above, Appellant having not filed any application for obtaining certified copy of the order, there is no occasion for extending the benefit of Section 12 of the Limitation Act. 24. Learned Counsel for the Appellant lastly contended that order having been uploaded on 05.12.2023, Appellant is entitled to compute the limitation from 05.12.2023. 25. When order has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 [ 14. Power to exempt. The Appellate Tribunal may on sufficient cause being shown, 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. ] 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 a downloaded copy in lieu of a certified copy. While it may well be true that waivers on fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2019 [Cethar Ltd. (Resolution Professional) v. SKS Ispat Power Ltd., MA No. 906/IB/2019 in CA No. 38/IB/2018, order dated 31-12-2019 (NCLT)] , 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 [Cognizance for Extension of Limitation, In re, (2020) 19 SCC 10 : (2021) 3 SCC (Cri) 801 ( 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 [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 Dru ..... 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