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Judgment
ORDER
The Appellant in the instant Comp App (AT) (CH) (Ins) No.158/2024, has preferred the same along with IA No.424/2024, seeking condonation of 13 days of delay chanced in preferring the Appeal, stating that the delay will fall well within the permissible limit under the proviso under section 61(2) of the Code and IA No.423/2024 seeking condonation of 44 days of delay chanced in refiling of the appeal.
Heard the Learned Counsels for the parties on IA No.423/2024 seeking condonation of delay in re-presenting/refiling the appeal. For the reasons which have been given in Para 3 of the said application and taking it as to be the grounds for delay in refiling of the appeal the Application apparently seems to be justified. Consequently, the Application IA No.423/2024 would stand allowed and the delay in refiling the appeal would stand condoned.
Then the IA No.424/2024 praying for condonation of delay of 13 days in filing the appeal was taken up for consideration. In the instant Company Appeal, the order which has been put to challenge is the order dated 09.11.2023, passed by the learned NCLT, Division Bench, Chennai in IA(IBC)/540/CHE/2022, on an application made under the provisions contained under subsection (5) of section 60 of I & B Code. By virtue of the Impugned Order under challenge, the amount thus realized from the sale of the stock by Tamil Nadu Warehousing Corporation (Appellant) was directed to be deposited, and Respondent No.2 was discharged from the case, on the grounds that the stock does not belong to them. However it may not be relevant at this stage to dwell on the merits of the Impugned Order, as the question for consideration at present, is exclusively confined to the interpretation to be given to the proviso to subsection 2 of section 61 of the I & B Code, limited with regard to the aspect of limitation. The Learned Counsel for the Appellant submits that as per the records, the Judgment was rendered on 09.11.2023 and copy of the same was uploaded on the NCLT website on 17.11.2023 and as per the endorsement made by the Registry of the NCLT, the certified copy of the same was issued to the Appellant only on 12.12.2023.
In support of the Application seeking Condonation of Delay, the Learned Counsel for the Appellant, has contended that the Certified Copy, was made available to the Appellant only on 12.12.2023, that the Applicant thereafter made efforts to collect documents that were necessary for filing of the Appeal and that due to lack of availability of certain relevant documents in time, the filing of an Appeal could be done only on 29.12.2023, and thus was delayed by 13 days. While referring to the pleadings raised in Para 3 of the Delay Condonation Application, during the course of argument while pressing the IA No.424/2024, the Learned Counsel for the Appellant attempts to establish that the order pronounced on 09.11.2023 should not be treated as the substantial order, on the grounds that his counsel could not properly hear the concluding part of the Impugned Order dated 09.11.2023 and therefore the date of pronouncement of order should be taken as 17.11.2023, that is, the date on which the order copy was uploaded on the website of NCLT. From 17.11.2023 to 29.12.2023, that is, the date of filing of Appeal it is 43 days and the delay of 13 days (43-30) beyond the permissible period of 30 days may be condoned under proviso to subsection 2 of section 61 of I & B Code, 2016.
This argument of the Learned Counsel for the Appellant with regard to the aspect of not being able to hear properly the substantive part of the order dated 09.11.2023, by his counsel is not acceptable by us for following reasons:-
This is not a ground pleaded by the Appellant in his Delay Condonation Application filed in IA No.424/2024, for seeking Condonation of 13 days of delay.
If such type of preposterous and unsustainable grounds are permitted to be raised and are taken into consideration for the purpose of extension of the period of limitation, it will defeat the very intentions of the proviso to subsection 2 of section 61 of IBC Code, and invariably in all cases seeking condonation of delay such type of grounds would be developed by the concerned applicants seeking Condonation of Delay in various forms depending upon the perspective and professional acumen of the counsels appearing on behalf of the applicants.
Thus the ground as submitted for seeking substantial relief for Condonation of Delay since being contrary to the pleading raised in the Application for Condonation of Delay, is not permissible to be considered and further, the ground taken by the counsel for the Appellant, that he could not properly hear the order pronounced in the court on 09.11.2023 and hence the order of 09.11.2023, should not be taken as to be a substantial order against him, for the purpose of determining the period of limitation is not acceptable by us.
The Learned Counsel for the Appellant has referred to the Judgment as it has been rendered by the Hon’ble Apex Court in Civil Appeal No.7467-7468 of 2023, Sanjay Pandurang Kalate Vs Vistra ITCL (India) Limited & Ors., and he proceeds to argue that if the logical interpretation is to be given to the Judgment as pronounced by the Hon’ble Apex Court while dealing with the aspect of limitation, the limitation has to be construed from the date of uploading of the Impugned Order on the website. This argument of the Learned Counsel for the Appellant may appear logical, but then too we cannot be oblivious of the fact that the said Judgment was delivered in a context which is quite different from the present case. The essence of the said Judgment is dealt with in Para 19 of the said Judgment which is extracted hereunder.
“19.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 appealed from was uploaded since prior to that date no order was pronounced”.
In the above case, the date of pronouncement of the Judgment has been adjudicated to be 30.05.2023, for the purpose of consideration of limitation because though an order was passed on 17.05.2023, the substantive order was deemed to have been passed only on 30.05.2023 that is, the date of uploading of the Judgment and accordingly it was directed that the period of limitation would commence from 30.05.2023 and not from 17.05.2023.
The logic assigned therein was that there was no occasion and opportunity available for the Appellant to lodge an application for obtaining a Certified Copy of the order on 17.05.2023, the reason being that the substantive order in the said case happened to be passed on 30.05.2023. Hence, the period of limitation in the said case of Sanjay Pandurang (Supra) was determined to commence from the date of passing the substantive order i.e., 30.05.2023 by determining the same from the date of its uploading.
The Judgment in the matter of Sanjay Pandurang (Supra) came up for consideration before the Principal Bench of the NCLAT, Delhi, in the matter of Supreme Construction Developers Private Limited Vs Puranik Builders Limited. The Principal Bench vide its Judgment dated 01.03.2024 has drawn a distinction from the Judgment of the Hon’ble Apex Court in the matter of Sanjay Pandurang Supra for the purpose of determining date of commencement of the limitation period on the ground that there would be a distinction with regard to the aspect of the determination of limitation and has held that, the commencement of limitation period has to be construed from the date of passing of a substantive order and by referring to Para 19 of Sanjay Pandurang case, the Tribunal has observed that in the cases where the substantive orders itself have been passed on the date of pronouncement, and in the presence of the counsel, who had participated in the proceedings (as is the case in the instant case when the order was passed on 09.11.2023 in presence of the concerned counsel), the benefit of section 12 of Limitation Act will not be available if the concerned party fails to apply for the Certified Copy of the order within the period of 30 days as prescribed under section 61 of IBC. The relevant paragraph of the Judgment is extracted hereunder: -
“8)The Judgment of the Hon’ble Supreme Court in “Sanjay Pandurang Kalate” (Supra) is clearly distinguishable and has no application in the present case where order was passed in presence of both the parties dismissing the IA filed by the Appellant. Certified copy of the order was not applied by the Appellant within 30 days from passing of the order and from the copy of the order annexed along with the Appeal, it is clear that the application given by the Appellant referred as “D. 19518 dated 19.12.2023”. Thus, certified copy was applied by the Appellant after 30 days. When an order is passed by the Adjudicating Authority it casts an obligation on the party to apply for certified copy if the benefit under Section 12 of the Limitation Act are sought to be claimed and party intent to file an appeal. We may refer to the Judgment of the Hon’ble Supreme Court in “V. Nagarajan vs. SKS Ispat and Power Limited and Ors.- (2022) 2 SCC 244”.
Admittedly, in the instant case, the order pronounced on 09.11.2023, was a substantive order, and it was pronounced in the presence of the counsels. According to the endorsement made in the Certified Copy of the order, the copy of the same was applied on 12.12.2023, which is beyond the 30 days’ period of limitation from the date of order as prescribed under law. Accordingly, the period of limitation for the Appellant will run against the Appellant from 09.11.2023 and not from 17.11.2023 and he may not be in a position to avail the benefit of an extension of the period of limitation by this Tribunal while exercising it is powers and discretion under the proviso to subsection 2 of section 61 of I & B Code, 2016.
Even this Tribunal had an occasion to deal with this issue, as to what would be the scope of determination of limitation as prescribed under section 61 of Insolvency and Bankruptcy Code, 2016, and particularly from the perspective as to how the date of pronouncements and of uploading of the relevant orders will be considered for the purpose of determination of the limitation period for preferring of an Appeal. The three-Members Bench of this Court, in its Judgment dated 04.04.2024 in CA (AT) (CH) (Ins) No.26/2024, has further elaborated on the rule laid down by the Hon’ble Apex Court in the Sanjay Pandurang Case and made clear-cut distinction while interpreting the implication of Rule 150 of NCLT Rules and accordingly has laid down as to how the period of Limitation for preferring an Appeal will be arrived at. The relevant observations made in Para 18 & 19 the said Judgment of the three-Members Bench is extracted hereunder:-
“18.On the contrary, the Counsel for the Respondent vehemently opposes the delay condonation application contending thereof that the propriety of arguments extended by the Learned Counsel for the Appellant cannot be accepted for the reason being, that the Hon’ble Apex Court in a Judgement reported in 2023 SCC Online Supreme Court 1663 Sanjay Pandurang Kalate vs Vistra ITCL (India) Limited & Ors., has specifically laid down in its Para (18) that the Provisions of the National Company Law Tribunal Rules, 2016, there has had to be a clear-cut demarcation while interpreting the implications of Rule 150, which contemplates as to what would be considered the actual date of pronouncement, which is a mandate provided under law for preferring an appeal. The pronouncement of judgement would mean that the “pronouncement”, has to be made by the court/tribunal after determination of issues and upon an application of mind in the open court/tribunal and the said conditions stands satisfied that the certified copy of the judgement itself where the ‘Appellant’ is a signatory to it (i.e. the judgement) signifying the fact that he was available and present on the date of the pronouncement and hence since he had positive knowledge of the pronouncement for him the limitation would start running from 17th November 2023 and not from the date of receiving the certified copy of the order as argued”
“19.The Learned Counsel for the Respondent has relied upon a Judgement rendered by the Principal Bench of National Company Law Appellate Tribunal in Comp. App. (AT)(Ins) No.1169/2022, EXIDE INDUSTRIES LTD. VS Jitender Kumar Jain Resolution Professional of Morakhia Copper & Alloys Pvt. Ltd., where too the Principal bench has observed and has laid down that the Limitation of filing the appeal begins when the order was actually pronounced, and particularly when pronounced in the court in the presence of the Appellant. The receipt of the free copy or a free certified copy would not be the part or the period involved therein which could be determined as to be a period for filing of an appeal. In its literal connotation the word ‘pronouncement’ in its judicial interpretation means to give a “concrete judgement” or “opinion formerly in an official proceedings in the Court Proceedings”, where a ‘Judge’ or ‘Bench’ thereof will pronounce a judgement or its sentence, the pronouncement means in its meaning as per the ‘Oxford Dictionary’ and expression or rationale conclusion on the part of the court on a given controversy by the Court/Tribunal and not from the date when the certified copy was applied for. Thus, the period of limitation in the instant case so far as the appellant is concerned will start running from the date of judgement i.e. 17th November 2023 and not from the date when the copy was provided to him i.e. on 5th January 2024, particularly when the appellant himself has applied for the procurement of the certified copy of the impugned judgement after the expiry of the statutory period of limitation for which no benefit of Section 12(2) of the Limitation Act, could have been extended in the light of the judgement of the Hon’ble Apex Court as rendered in V. Nagarajan supra”.
Given this, the peculiar ground taken by the counsel for the Appellant that he could not properly hear the Judgment on the date of pronouncement that too, not mentioned in the pleadings and therefore the date of uploading the Judgment should be taken for computing the period of limitation as per the principles laid down in Sanjay Pandurang Kalate Case, cannot be accepted. The case of the Appellant will not fall to be within the guiding principles laid down by the Hon’ble Apex Court in Sanjay Pandurang Case (Supra) which was altogether based upon a distinct set of facts where the effective order was passed on a subsequent date and therefore the period of limitation was determined to be computed from the date of pronouncement of such substantive order. Further, as per the distinction drawn by the Principal Bench in its order dated 01.03.2024 as to when the substantive order will be deemed to have been passed, the date of passing of the substantive order in the instant case would be 09.11.2023, and this has to be taken as to be the cut-off period for the purpose of determining the period of limitation, particularly when the Appellant has failed in filing the application for procuring the Certified Copy of the order, within the prescribed period of limitation. Accordingly, it is seen that the gap between the date of filing (29.12.2023) and the date of pronouncement of the order (09.11.2023) is 50 days which is beyond the permissible period of 30 days + 15 days. Further in the absence of diligence on the part of the Appellant in form of not even trying to procure the certified copy in time, we don’t find, anything in the pleadings to justify the plea for condonation of delay in the IA No.424/2024. Consequentially the Delay Condonation Application would stand rejected. Consequently, the Comp App (AT) (CH) (Ins) No.158/2024 would stand dismissed for the aforesaid reasons.