Innovators Cleantech Private limited VS Pasari Multi Projects Private Limited I.A. No. 1622 & 1623 of 2024 CA (AT) Ins 115 of 2024
Facts:
1) Application under Section 9 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the “IBC”) was filed by the Appellant seeking initiation of Corporate Insolvency Resolution Process (“CIRP”) against Respondent No.1 operational debt of Rs.4,75,70,047/- as on 05.01.2018 which was dismissed by the AA vide order dated 28.08.2023.
2) IA is filed by the respondent challenging that the appeal is barred by limitation.
Arguments:
Appellant:
1) Counsel submitted that Appeal having been e-filed on 25.09.2023, which was within 30 days from the impugned order dated 28.08.2023, was filed within limitation period and there is no delay in filing of the Appeal and submission of the Applicant/ Respondent that Appeal was filed with delay, needs to be rejected. It is submitted that as per the NCLAT Rules and orders issued by this Tribunal dated 24.12.2022, the date on which the Appeal is e-filed, has to be computed as date of filing of the Appeal for the purposes of limitation. It is submitted that submission of the Applicant/ Respondent that refiling date should be treated as fresh filing and limitation be computed from the said date, cannot be accepted.
Respondent:
1) Counsel submitted that although the Appeal is claimed to be e-filed on 25.09.2023, but filing on 25.09.2023 cannot be accepted, since neither the impugned order nor the Vakalatnama was filed; no notarised affidavit was accompanied with the Appeal; the Appeal was not in the prescribed format.
2) It was submitted that 30 days’ time for filing of the Appeal expired on 27.09.2023 and defects were communicated on 04.10.2023, were substantial defects. It is submitted that extended period of 15 days also expired on 12.10.2023. Affidavit in support of the Appeal and the Applications affirmed for the first time and Vakalatnama was signed and executed on 15.12.2023. The defective, defects were point out by the Registry on 03.01.2024. The refiling nof the Appeal was made on 16.01.2024, which should be treated as the date of filing of the Appeal, for the purpose of limitation and earlier filing of the Appeal, without proper materials, it was non est filing.
3) It is submitted that refiling date 16.01.2024 is to be treated as the date of filing of the Appeal, which filing being much beyond the period of 45 days of the impugned order, the Appeal deserves to be dismissed as barred by time. Counsel submitted that the Appellant did not apply for certified copy of the order, nor any certified copy of the order has been filed in the Appeal. Applying certified copy of the order is mandatory as per Rule 22 (2) of NCLAT Rules, 2016 (“ NCLAT Rules”), hence, the Appeal also deserve to be dismissed, since it has been filed without applying certified copy of the order.
Decision: NCLAT dismissed the appeal.
Rationale:
1) It held that NCLAT Rules 2016 itself contemplates communication of defects and the removal of the defects in the Appeal. Rule 26, sub-rule (4) further empowers the Registrar in appropriate case, to decline to register the Appeal or filing of any documents. Thus, power is vested with the Registrar to decline to register Appeal when defects are not cured. The procedure for clearing the defects, empowers the Registrar to grant further time for clearing the defects itself contemplate that defective Appeal filed by the Appellant is permitted to be cured and in event the defects are not cured, the Appeal can be refused to be registered. But when defects are cured and the Appeal is registered, the date of refiling of the Appeal after curing the defects, cannot be treated to be the fresh date of filing of the Appeal for computation of limitation.
2) It held that Appeal having been e-filed on 25.09.2023, i.e. within 30 days from passing of the impugned order dated 28.08.2023, the Appeal cannot be held to be barred by time and the submission advanced by Shri Sanjeev Sen, the Appeal when it was refiled after curing the defects, i.e., 16.01.2024, may be treated as date of filing, cannot be accepted. The date of refiling and date of filing are two different concepts, which are clear from statutory scheme.
3) It held that When an Applicant does not apply for a certified copy of the order within the limitation prescribed, he is not entitled to seek any exclusion under Section 12 of the Limitation Act and it is the Applicant, who has to comply the limitation prescribed for filing an Appeal, but the mere fact that he has not applied for certified copy of the order, cannot be a ground for rejecting the Appeal.
Order:
