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TMI Blog2024 (3) TMI 1141X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 2023 and this Appeal has been e-filed on 29.12.2023. 3. In the Delay Condonation Application, the Appellant has submitted that Impugned Order was not available prior to 12.12.2023 and Impugned Order was made available on website of NCLT on 12.12.2023. In paragraph 3 and 4, following reasons have been given for condonation of delay: "3. That the impugned order is dated 10.11.2023. The period of 30 days, thus starts from 11.11.2023 which expires on 11.12.2023. It is a matter of fact that the impugned order was not available prior to 12.12.2023. The impugned order was made available on the official website of NCLT on 12.12.2023 thereafter the Bank internally discussed the matter& took both internal and external 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-f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank of Baroda has filed an Affidavit in reply to the Delay Condonation Application where it has been pleaded that Application I.A. No. 127 of 22 was heard on 10.11.2023 in the presence of counsel for the Appellant. It is submitted that impugned order was pronounced in the open court. Learned Counsel for the Appellant was present and raised objection which was also noted in the impugned order and Impugned Order was passed in presence of counsel for the Appellant hence Appellant cannot plead that Appellant was not aware of the Order. It was further stated that Order was uploaded in the official website on 05.12.2023, there being delay of 18 days in filing the Appeal, which delay is uncondonable. It is further stated that Appellant never 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 above rules indicates that the pronouncement of the order is necessary and cannot be dispensed with. 20. 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 appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out as to whether Appellant can made an application for certified copy of the Order passed in proceeding before the Adjudicating Authority. 15. The present is a proceeding before the Adjudicating Authority commenced on an application filed by State Bank of India. The Appellant filed the application under Section 7 which application was admitted on 25.05.2029. Thus the very company petition has been filed by the Appellant itself out of which he proceeding in question including the I.A. No. 127 of 2022 arose. 16. We need to notice certain rule of the NCLT 2016 to find out the relevant provision and procedure with regard to certified copy of the Order. 17. Rule 2 which is a definition clause, relevant of Rules 9, 12,14,16 and 17 are as follows: (9) "certified" means in relation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l on record or affidavit or additional affidavit to indicate that any Application has been filed. Rule 2(14) as extracted above 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. 22. Now coming to the second question as to whether the Appellant can be treated to be a party so as to file an application for certified copy. "Parties" have been defined in Rule 2(16) as extracted above. 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 Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. Explanation.-In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded." ( emphasis supplied ) 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 "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 cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extended the period of limitation applicable in the proceedings, only in cases where such period had not ended before 15-3-2020. In this case, owing to the specific language of Sections 61(1) and 61(2), it is evident that limitation commenced once the order was pronounced and the time taken by the court to provide the appellant with a certified copy would have been excluded, as clarified in Section 12(2) of the Limitation Act, if the appellant had applied for a certified copy within the prescribed period of limitation under Section 61(2) IBC. The construction of the law does not import the absurdity the appellant alleges of an impossible act of filing an appeal against an order which was uploaded 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 31-12-2019 [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 unt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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