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Judgment
O R D E R
28.02.2024: Heard Learned Counsel for the Appellant.
This is an application (I.A. No. 872 of 2024) praying for delay in filing the Appeal. This Appeal has been filed against the Order dated 25th September, 2023 passed by the National Company Law Tribunal, Division Bench, Court-II, Kolkata in CP(IB) No. 56 of 2023 by which order Section 9 Application filed by the Appellant has been dismissed. This Appeal has been e-filed on 21st November, 2023.
The Application was heard on 21st September, 2023 and the order was pronounced on 25th September, 2023. The ground taken in the Application is that the Appellant received the copy of the order only on 09th October, 2023 which was sent by the Registry; Learned Counsel refers to Judgment of Hon’ble Supreme Court in Civil Appeal No. 7467 and 7468 of 2023, Sanjay Pandurang Kalate Vs. Vistara (ITCL) India Ltd.& Ors, para 20 as well as Judgment of Hon’ble Supreme Court in V. Nagarajan Vs. SKS Inspat and Power Limited.
We have considered the submissions of Learned Counsel for the Appellant and perused the record.
The order clearly mentions both the date i.e. date of hearing i.e. 21st September, 2023 and date of pronouncement i.e. 25th September, 2023. Order also indicates that counsel for the operational creditor i.e. Appellant was present and the order was pronounced in the presence of the Learned Counsel for the Appellant.
In view of the law laid down by the Hon’ble Supreme Court in V. Nagarajan, the period for filing the Appeal shall commence from the date when order is pronounced in presence of Learned Counsel for the Appellant, the submission of the Appellant relying on Judgment of Sanjay Pandurang Kalate in paragraph 20 is to be considered. Hon’ble Supreme Court laid down following in para 20 of the Judgment:
“20.In V Nagarajan (supra), there was an unequivocal pronouncement of the order before the upload of the order and thus, the decision is not applicable to the facts of the case. In the facts of the present case, the date of upload of the order is the same as the date of pronouncement. To avoid situations such as these, in cases where the matter has been heard on a particular day but the order is pronounced on a later date, the NCLT must refrain from affixing the date of hearing on the order. Such an approach would be a violation of the NCLT Rules, which create a distinction between hearing and pronouncement and do not allow the NCLT to dispense with the requirement of pronouncement.
21.In view of the above, the period of limitation began to run on 30 May 2023. The 30- day limitation period provided in Section 61(2) of the IBC concluded on 29 June 2023. Though the appeal was filed beyond the period of thirty days, it was within the condonable period of fifteen days. We are of the considered view that the appeal should be restored to the NCLAT for reconsidering whether the appellant has shown sufficient cause for condoning the delay beyond thirty days. To facilitate this, the impugned order of the NCLAT declining to condone the delay is set aside and the proceedings are restored to the file of the NCLAT. We are not inclined to stay the CIRP at this stage. However, the NCLAT is directed to dispose of the appeal at the earliest.”
When we look into the judgment of the Hon’ble Supreme Court, in the said case the matter was heard by the Adjudicating Authority but no order was pronounced and it was subsequently uploaded on 30th May, 2023. Both the counsels agreed that no substantive order was passed on 17th May, 2023 which fact has been noticed in paragraph 19 of the above judgment which is as follows;
“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.
Paragraph 20 as quoted above were in reference of the facts of the case of Sanjay Pandurang Kalate, where although order was pronounced subsequently but earlier date was put in the order. The present is a case where both the date of hearing and date of pronouncement has been clearly mentioned in the order hence the observation of para 20 in Sanjay Pandurang Kalate has no relevance in the presence case.
Lastly, learned counsel for the Appellant sought to contend that judgment of Sanjay Pandurang Kalate and V Nagarajan were cases where proceedings in CIRP has already been commenced whereas in the present case proceeding was not commenced since Section 9 Application filed by the Appellant was dismissed as non-maintainable which is distinguishable feature with regard to limitation; we see no relevance in the above submission of appellant qua the question of delay in filing an appeal.
The Appeal have been filed beyond 15 days after expiry of the limitation, we are unable to condone the delay since our jurisdiction to condone the delay is limited to 15 days only as per Section 61(2) proviso of the Code. Delay Condonation Application is dismissed. In result, memo of Appeal is rejected.