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Judgment
As per Justice Sharad Kumar Sharma Member(Judicial)
O R D E R
These are set of four Appeals which poses a challenge to the Impugned Order dated 30th November 2023, as rendered in respective Appeals by the National Company Law Tribunal, whereby the claim raised by the Appellants stood rejected by the Impugned Order. As aggrieved by the partial rejection of claim by the Liquidator, the Appellants had preferred Appeals before the National Company Law Tribunal by invoking Provisions contained under Section 42 of the Insolvency and Bankruptcy Code, 2016, which were admittedly preferred with the delay of 358 days (which is common in all the Appeals). By the impugned order under challenge, the proceedings stood rejected on the grounds of Limitation. Being aggrieved against said Judgment of 30th November 2023, the instant Company Appeals have been preferred. Each of the appeals with accompanying interlocutory applications are narrated below:
Comp. App. (AT) (CH) (Ins) 363 of 2024 is accompanied with IA No.704/2024 being condone delay application seeking condonation of 13 days delay as well as IA No.705/2024 seeking condonation of delay of 134 days in refiling the Appeal,
Comp. App. (AT) (CH) (Ins) 264 of 2024, is accompanied by the Condone Delay Application IA No.706/2024 seeking condonation of 13 days delay in preferring the Appeal as well as IA No.707/2024 seeking condonation of delay of 134 days in re-filing the Appeal,
Comp. App. (AT) (CH) (Ins) 265 of 2024 is accompanied with Condone Delay Application IA No.708/2024 seeking 13 days of delay which has chanced in preferring the Appeal, as well as the application I.A. 709/2024 seeking condonation of delay of 134 days in re-filing,
Comp. App. (AT) (CH) (Ins) 266 of 2024 is accompanied by condone delay application IA No.704/2024 seeking condonation of 13 days delay and IA 711/2024 seeking condonation of delay of 134 days in re-filing the Appeal.
In all these Appeals, the impugned order under challenge happens to be that of 30thNovember 2023, the Appellant has preferred these appeals on 13th of January 2024.After scrutinizing the records of the Appeal, the Appellant was informed about the defects which has occurred, by way of an intimation which was admittedly imparted to the Appellants on 18th January 2024, but for the reasons best known to the Appellants, they had delayed, in curing the defects and re-filing the appeal and there chanced a delay of 134 days in each of the appeals as the appeals were preferred on 24th July 2024.
In the respective IAs that IA No.705/2024, IA No. 707/2024, IA No.709/2024 and IA No.711/2024 which has been preferred by the Appellant, in respective Company Appeals, the Counsel for the Appellants seeks for a condonation of delay which has chanced in re-filing the Appeal. The ground which has been taken by the Appellants for seeking a condonation of 134 days of delay in re-filing, has been on the ground that on the basis of the intimations given by the Registrar of this Tribunal, they have taken steps to cure the defects as pointed out, but the Appeals had to be presented multiple times to the Registry before they stood fully rectified only on 24.07.2024. It is to be noted that, once the Registry has pointed out the defects, they ought to have been rectified by the Appellants at one attempt and there cannot be an abuse of process of the Tribunal by partial rectification of defects and seeking multiple opportunities to rectify the defects. But, still since the issue of delay in re-filing is being exclusively between the Tribunal and the parties, the delay of 134 days which has chanced in re-filing the Appeals would hereby stand condoned.
Heard the Learned Counsel for the Appellant as well as for the Respondent on merits of the Condone Delay Application. Few dates which are common in nature, in all these four appeals, are being, enumerated hereunder:
The appellant admittedly has approached before the NCLT for pressing his claim with respect to his service arrears, with the delay of 358 days, which constituted as to be the ground for rejecting of claim by Impugned Order dated 30th November 2023.
The Order of NCLT dated 30th November 2023, was uploaded by the Registry of the NCLT on 30th November 2023 itself, meaning thereby that the presumption would be that once the order is being uploaded, it falls to be an order in the public domain and its knowledge would be attributed to be automatic to the Appellant because he had contested the proceedings at the stage when the order on 30th November 2023 was passed.
Though not referred to in the delay condonation application, the Counsel for the respondent had pointed out that in compliance of Rule 50 of the NCLT Rules, the free copy of the order was supplied to the Appellant on 1st of December 2023, meaning thereby that immediately after the supply of the free copy, the knowledge once again would be deemed to have been attributed to the Appellant of the Impugned Order dated 30th November 2023.
The Appellants for the reasons best known to them, despite having got an opportunity of knowledge of passing of the Impugned Order, on 30.11.2023 and 01.12.2023 applied for the certified copy of the judgment only on 8th January 2024, that is much beyond the prescribed period of limitation, as given under sub section 2 of section 61 for the purposes of preferring the Appeal.
Belated filing of the Application to procure the certified copy (in this case it was on 8th January 2024 beyond the limitation period of 30 days of the order) will not permit the Appellants to take benefit of the proviso of Sub Section 2 of Section 61, for seeking condonation of delay as sought for in the instant Appeals, because as per the dictum of the Hon’ble Apex Court and subsequently also rendered by this Tribunal too, the benefit of the Proviso of extension of limitation by the Appellate Tribunal of 13 days, would be available only when the application for obtaining the certified copy itself is filed within 30 days from the date of passing of the Judgment, which has been determined as to be date when the Judgment is uploaded, which in the instant case would be from 30th of November 2023. Thus, the knowledge of the impugned judgment, dated 30th November 2023, shall be deemed to have been imparted to the appellant on 30th November 2023 itself, due to the uploading of the Judgment and secondly through supply of the said free copy of the Judgment under Rule 50 of the NCLT Rules, on 1st of December 2023 and therefore the Appellant cannot contend that he could not get the knowledge of the order, which could have restricted him to prefer an appeal in time.
The Counsel for the Appellant for the purpose of seeking condonation of delay in each of these appeals, has referred to the pleadings which are raised in Paras 6 and 8 of the application. We need not be much concerned with the aspect of delay of 358 days in filing of Application which has chanced in the proceedings before the NCLT which has been pleaded and hence no observation is required to be made in relation to the aforesaid plea. But as far as the delay condonation which has been sought are detailed in Para 8 as given below:-
the cyclone in Chennai;
the reason being that the Counsel met with an accident and was on the bed rest;
he got the knowledge of the order at a belated stage from his Counsel only on 12.12.2023;
because of the Christmas Holidays, he could not file the appeal within the prescribed time.
All the grounds which have been taken in Para 8 cannot be taken to prevent him from applying for the certified copy of the impugned order and cannot shift the date from which limitation period will start. Accordingly, it is apt to compute from the date of uploading of the Impugned Order, that is 30.11.2023. The Impugned Judgment was supplied to the Appellant i.e. on 1st of December 2023, and therefore the knowledge of passing of the Impugned Order cannot be with effect from 12.12.2023 as pleaded, but from 30.11.2023. The Appeals have been filed on 13.01.2024 with a delay of 13 days which can be allowed under the second Proviso to sub section 2 of section 61 provided sufficient cause for not filing the Appeal within the time limit is shown and the Tribunal is satisfied with the same. One of the conditions as laid down by Judgments of Apex Court and this Tribunal itself is that the Appellant must show diligence in pursuing his legal remedies in the form of applying for a certified copy within the limitation period of 30 days from the date of Order. In this case, the certified copy of the Order was applied on 08.01.2024, well after the expiry of the limitation period. Hence, condonation of delay of 13 days under these circumstances and in the face of reasons preferred is not feasible. It must be reiterated that the law of limitation has to be stringently adhered to in a proceeding under Section 61 and more particularly owing to the facts as already been detailed above, we are not inclined to condone the delay, which has chanced in preferring the Appeal, accordingly, I.A. No.704/2024 in Comp. App. (AT)(CH)(Ins) No.263/2024; I.A. No.706/2024 in Comp. App. (AT)(CH)(Ins) No.264/2024; I.A. No.708/2024 in Comp. App. (AT)(CH)(Ins) No.265/2024 and I.A. No.710/2024 in Comp. App. (AT)(CH)(Ins) No.266/2024 the same would hereby stand Rejected being outside the period provided under proviso to sub Section 2 of Section 61 and as a consequence thereto, the respective Company Appeals too would stand Dismissed.
We are constrained to take up this matter suo moto, upon the information being imparted by the counsel for the Appellant that, in one of the Company Appeals which has been mentioned in the Judgment, a wrong appeal number has been given which reads as Company Appeal (AT)(CH)(Ins) 363/2024, which needs to be rectified as Company Appeal (AT)(CH)(Ins) 263/2024.
The prayer as sought for is granted. The reference of Company Appeal (AT)(CH)(Ins) 363/2024, as mentioned in the Judgment of 26.07.2024, is to be read as Company Appeal (AT)(CH)(Ins) 263/2024. Today’s order would form part of the Judgment dated 26.07.2024.