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Judgment
ORDER
The Ld. NCLT Chennai, on 16.07.2024 had passed a consolidated order, on two independent IA being IA(IBC)/1729(CHE)/2023 and IA (IBC)/2189(CHE)/2023, as respectively preferred in IBA/889/2019. The Ld. Counsel for the Appellant has approached this Appellate Tribunal by filing an appeal before the registry of this Appellate Tribunal, whereby he has put a challenge to the order, passed in the IA No. 1729/2023 as passed in IBA/889/2019, on 16.07.2024. The said appeal is accompanied by four application being IA No. 1310/2024 seeking Condonation of delay, IA No. 1308/2024 seeking exemption from filing Dim annexures, IA No. 1309/2024 seeking urgent listing and IA No. 1311/2024 seeking interim reliefs, wherein IA No. 1310/2024 for Condonation of Delay was taken up for consideration. The Appellant states that he has filed a single consolidated appeal against the two orders in IA No. 1729/2023 and in IA No. 2189/2023, on 21.08.2024, that on scrutiny the Registry on 27.09.2024 advised him separate appeals for each latter, that he amended the prayers in said appeal, restricting it to IA No. 2189/2023 and re-filed the same on 04.10.2024 which is in scrunity before the Registry, and that, further, after taking instructions he has preferred the instant appeal on 09.10.2024 impugned by the order on IA No. 1729/2023. He has stated that the date of order being 16.07.2024, the limitation period of 30 days will expire on 29.09.2024, after excluding 6 days consumed in getting the certified copy, 1 day for public holiday being independence day and 38 days spent by Registry in scrutiny of his original consolidated appeal from 21.08.2024 to 27.09.2024 to point out that he has to file 2 separate appeals, and since he has filed the instant appeal on 09.10.2024, the delay computed from 29.09.2024 is only 10 days and it may be condoned.
During the hearing, it was found that the certified copy accompanying the appeal was issued on 16.12.2024. Thus, it is established that when the instant appeal was filed before the Registry on 09.10.2024 it was not accompanied with a certified copy of the impugned order which is contrary to the stipulation of Rule 22(2) of NCLAT Rules 2016.
We cannot be oblivious of the provisions contained under Rule 22(2) of the NCLAT Rules of 2016, which contemplates, and is rather mandatory in nature, that every appeal would be accompanied with a certified copy of the impugned judgment/order. The use of the words ‘shall’ and ‘accompanied’ makes supplying of the certified copy as to be mandatory. However, despite the intimation given by the registry on 27.09.2024, that two separate appeals have to be filed, which logically goes without saying that, the Appellant ought to have applied for a certified copy so as to enable him to prefer the instant appeal against the impugned order which has been passed in IA (IBC)/1729(CHE)/2023. But the same was not done and in accordance with the endorsement made by the registry of the Ld. NCLT Chennai, the application for procuring the certified copy was filed on 10.12.2024 and the same was issued on 16.12.2024. The Ld. Counsel for the Appellant attempts to explain this by stating that since he has supplied the certified copy in the earlier appeal which is still under scrutiny, he was under the impression that another certified copy will not be necessary for the instant appeal, that owing to the report submitted by the registry in the instant appeal on 10.12.2024, he was made conscious, that he had to supply the certified copy of the impugned order in the instant appeal too and thereafter, he has immediately applied for the certified copy on 10.12.2024, got it issued on 16.12.2024 and supplied the same in the instant appeal.
When the Ld. Counsel for the Appellant was made conscious of the registry vide its report dated 27.09.2024 as given in the Company Appeal (AT) (Ins) bearing E-Filing No. 9805118/01854/2024, that he has to file two independent appeals on the impugned orders delivered in two IA, it logically follows that the appellant was supposed to file another appeal only after procuring the certified copy of the order which is mandated by Rule 22(2) of the NCLAT Rules of 2016. But, the application for the certified copy for filing of an independent appeal was preferred only on 10.12.2024, after raising of the defect was filed along with the appeal on 16.12.2024.
The appellate provision under the I & B Code, has been provided under Section 61 of the Code. On a simpliciter reading of the appellate provisions contained under Section 61 and, the language used therein, it is quite explicit in itself, which provides for, that as against any order which is passed in a company petition, an appeal would lie. The reference of the word ‘an’ under Section 61, is of much relevance which itself explicitly demonstrates that it singularises appeal for each and every order, which is passed in the proceedings in which an appellant may be aggrieved and it means that there has to be a separate appeal for each order. In that eventuality, the Appellant cannot take the liberty to take a stand that the necessity for him to file another separate appeal as he sought to impugn two separate orders was only realized by him only when the registry has reported a defect in this regard. Hence, the aspect of limitation for preferring the instant appeal will have to be determined on the basis of what law contemplates for filing of an appeal in the light of the provision contained under Section 61(1) which is extracted hereunder: -
“61. Appeals and Appellate Authority.— (1)
Notwithstanding anything to the contrary contained under the Companies Act, 2013, any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal.”
The solitary ground which had been taken by the Ld. Counsel for the Appellant, for seeking a Condonation of Delay of 85 days (as reported by the registry) is that he was not aware of the need to file two separate appeals and therefore 38 days taken by Registry to point this out from the date of filing of the earlier consolidated appeal and also 6 days taken to obtain the certified copy of order need to be excluded. This exclusion cannot be permitted as ignorance of law is not an excuse and the same certified copy on account of which exclusion is sought, has not accompanied this appeal.
He has further stated that he did not attach the certified copy with the instant appeal because he was under impression that he has already supplied it in the earlier appeal till it was pointed out by Registry. This cannot be taken as an excuse to file an appeal without a certified copy when law, under its Rule 22(2) of the NCLAT Rules 2016, provides that every appeal ‘shall’ be ‘accompanied’ with the certified copy of the impugned order. The use of the word ‘shall’ under Rule 22(2) of the NCLAT Rules 2016, makes the Rule to be mandatory in nature and the use of the word ‘accompany’ qualifies the clear intention that, at the stage of an institution of the appeal itself, the same has to be mandatorily accompanied with a certified copy of the order until and unless there happens to be an accompanying exemption application as contemplated under Rule 31 of the NCLAT Rules 2016. Even the exemption application which is accompanying the instant appeal does not pray for, an exemption from filing the certified copy of the impugned order. Hence it has to be held that the instant appeal at the time of filing was not accompanied by a certified copy of the impugned order, contrary to the mandate of Rule 22(2) of NCLAT Rules, has to be rejected.
Accordingly, IA No. 1310/2024, seeking condonation of 85 days of delay that has been reported by the registry would hereby stand ‘rejected’.
In addition, the appeal when filed on 09.10.2024 was without a certified copy, and in the Exemption Application preferred by the Appellant being IA No. 1308/2024, no exemption was sought by the Appellant to supply the certified copy of the impugned order at a later stage.
Consequentially, the ‘appeal’ Company Appeal (AT) (CH) (Ins) No.475/2024 would stand ‘dismissed’. All the pending Interlocutory Applications will also stand closed.