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Judgment
ORDER
17.10.2023: Heard Learned Counsel for the parties.
The Appellant has filed this Application praying for recall of the order dated 21.08.2023. By our order dated 21.08.2023, Appeals filed by the Appellant were dismissed on the ground of delay in filing the Appeals.
Learned Counsel for the Appellant submits that the Appeals were filed under Section 421 of the Companies Act, 2013 and unless the copy of the order is served on the Appellant, the limitation for filing the Appeal shall not commence.
Learned Counsel for the Respondents refuting the submission of the Counsel for the Appellant submits that even as per Section 421 of the Companies Act, 2013, the present Appeals are barred by time.
Counsel for the Respondent submits that the Appellant themselves filed an IA Nos. 4977-4978 of 2022 which IA was filed by the Appellant where direction was sought for payment of outstanding amount of Rs.1,09,29,254/-against the ‘IL&FS Environment and Infrastructure Ltd.’ as well as amount of Rs.8,53,621/- from Respondent No.1. It is submitted that in the said IA, this Tribunal has already passed an order on 14.02.2023 by which following directions were issued:-
“12.I.A. No. 4977-4978 of 2022: This application has been filed by Shruthi Total HR Solutions Pvt. Ltd. By the application applicant has prayed for direction for payment of outstanding amount of Rs.1,09,29,254/- against the IL&FS Environment and Infrastructure Ltd, as well as amount of Rs.8,53,621/- which is due form Respondent No.1. The Respondent No.1 i.e. Indo Enviro Integrated Solutions Limited has already taken over under the Resolution Plan Learned counsel for Respondent No.1 submits that Respondent No.1 shall make payment of any amount which is subsequent to the cut of date for which appropriate details be given by the applicant to the Respondent No. 1.
We permit the applicant to give the details of amount after cut of date i.e. 15.10.2018, which shall be paid by the Respondent No.1 within one months from receipt of the claim. Application is disposed of accordingly.”
Counsel for the Respondents submits that when the application was filed which was based on the Resolution Plan under which Appellant claims that Appellants were entitled for payment, the said Resolution Plan has been challenged in these Appeals i.e. order dated 02.02.2021, Appellant cannot be allowed to contend that the Appellant was not aware of the order or served the Order. Without the copy of the order being there, filing of the application is incomprehensible. The Application was filed in the year 2022 which was disposed of by this Tribunal on 14.02.2023, as noted above. The present Appeal has been filed by the Appellant against the order dated 02.02.2021 on 22.03.2023. More than 90 days have been lapsed from filing of the application IA Nos. 4977-4978 of 2022 by the Appellant, thus, even under Section 421 of the Companies Act, the Appeals filed by the Appellant are barred by time.
We have considered the submissions of the parties and perused the record.
The order which sought to be challenged in the Appeals was order dated 02.02.2021. As noted above, IA Nos. 4977-4978 of 2022 were filed by these very Appellants seeking direction to receive the payment under the Resolution Plan. When the Appellants themselves filed an application which was also disposed of by this Tribunal on 14.02.2023, they cannot be heard to say that they are not served the order. Thus, as per Section 421, Appeals were barred by limitation.
Learned Counsel for the Appellant has also relied on the judgment of the Hon’ble Supreme Court in “V Nagarajan vs. SKS Ispat and Power Ltd. & Ors.- Civil Appeal No. 3327 of 2020”. Appellant has relied on paragraph 14 of the judgment where following has been observed by the Hon’ble Supreme Court:-
“14.In Sagufa Ahmed (supra) a three judge Bench of this Court dealt with the interpretation of Section 421(3) of the Companies Act and whether limitation would start running once a free certified copy is made available to the party, sans an application from the aggrieved party. It held, in the context of a winding up petition under the Companies Act, that the aggrieved party could wait till it received its free copy under Section 420(3) of the Companies Act 2013 read with Rule 50 of the NCLT Rules, and was not obligated to file an application for a certified copy for the purposes of the computation of limitation. Justice V Ramasubramanian held:
“12.Therefore, it is true, as contended by the appellants, that the period of limitation of 45 days prescribed in Section 421(3) would start running only from the date on which a copy of the order of the Tribunal is made available to the person aggrieved. It is also true that under Section 420(3) of the Act read with Rule 50, the appellants were entitled to be furnished with a certified copy of the order free of cost.
13.Therefore if the appellants had chosen not to file a copy application, but to await the receipt of a free copy of the order in terms of Section 420(3) read with Rule 50, they would be perfectly justified in falling back on Section 421(3), for fixing the date from which limitation would start running....." (emphasis supplied)
However, the Court clarified that this would no longer apply once an application for a certified copy is made and the order has been received. Irrespective of when the free certified copy is received, the limitation period would then be computed from the date of receipt of the certified copy.
“13..... But the appellants in this case, chose to apply for a certified copy after 27 days of the pronouncement of the order in their presence and they now fall back upon Section 421(3).
14.Despite the above factual position, we do not want to hold against the appellants, the fact that they waited from 25-10- 2019 (the date of the order [Sagufa Ahmed v. Upper Assam Plywood Products (P) Ltd., 2019 SCC OnLine NCLT 749] of NCLT) up to 21-11-2019, to make a copy application. But at least from 19-12-2019, the date on which a certified copy was admittedly received by the counsel for the appellants, the period of limitation cannot be stopped from running. From 19- 12-2019, the date on which the counsel for the appellants received the copy of the order, the appellants had a period of 45 days to file an appeal. This period expired on 2-2-2020.”
Therefore in a field which is not covered by a special law which invests the NCLT with jurisdiction, the general principle for the computation of limitation for filing an appeal against an order of the NCLT is governed by the statutory mandate of Section 420(3) of the Companies Act read with Rule 50 of the NCLT Rules, which enables a party to compute limitation from the date of receipt of the statutorily mandated free certified copy, without having to file its own application. However, the decision of this Court in Sagufa Ahmed (surpa) clarifies that the statutory mandate of a free copy is not to enable litigants to take two bites at the apple where they could compute limitation from either when the certified copy is received on the litigant's application or received as a free copy from the registry- whichever is later.”
The Hon’ble Supreme Court in the above judgment was referring to an earlier judgment of the Hon’ble Supreme Court in “Sagufa Ahmed vs. Upper Assam Plywood Products Pvt. Ltd.- 2021 (2) SCC 317” which was a case where Appeal was filed under Section 421. In the judgment of Sagufa Ahmed (supra), it was held that till the free of cost copy is not supplied, the limitation will not commence. In the said case, the certified copy was also applied and then the Court held that when certified copy is applied, the claim on the basis of that till the free of cost copy is received limitation will not run, was rejected. The said judgment does not in any manner help the Appellant.
Moreso, present is an application for recall of the judgment. The order passed by this Tribunal was passed after hearing the counsel for the Appellant. The ground for recall has already been settled by Five Member Bench’s Judgment of this Tribunal in “Union Bank of India (Erstwhile Corporation Bank) vs. Dinkar T. Venkatasubramanian & Ors.- IA No.3961 of 2022 in Company Appeal (AT) (Ins.) No. 729 of 2020” dated 25.05.2023 where grounds for recall are clearly laid down. The present case is not covered within any ground for recall of the judgment of this Tribunal.
We, thus, are of the view that there is no ground for recall of the judgment. Applications are rejected.