Full Judgment Text
2025 INSC 447
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.11070 - 11071 OF 2024
(@ DIARY NO. 10029 OF 2024)
A RAJENDRA … APPELLANT
VERSUS
GONUGUNTA MADHUSUDHAN RAO
& ORS ... RESPONDENT (S)
J U D G M E N T
AUGUSTINE GEORGE MASIH, J.
1. These appeals have been preferred against the
Order dated 18.01.2024 passed by the National
Company Law Appellate Tribunal (hereinafter
referred to as “NCLAT”) where appeals preferred by
the appellant herein stand dismissed as a
consequence of dismissal of the applications of
condonation of delay on the even date.
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2025.04.04
16:56:24 IST
Reason:
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2. Two appeals were preferred before the NCLAT
against two separate orders passed on 20.07.2023
by the National Company Law Tribunal (hereinafter
referred to as “NCLT”) where an application filed by
the appellant herein who is the shareholder and
suspended Managing Director of Dharti Dredging
and Infrastructure Limited (Corporate Debtor) under
Section 60(5) read with Section 35(1)(N) of the
Insolvency and Bankruptcy Code, 2016 (hereinafter
referred to as “IBC”) seeking a direction to the
respondent(s) to place the Resolution Plans
submitted by him before the Committee of Creditors
(CoC) for consideration along with the other
Resolution Plan and for staying the voting results on
the Resolution Plan which was dismissed and
another application preferred by Respondent No. 1,
Resolution Professional of the Corporate Debtor
(hereinafter referred to as “RP”) under Section 30(6)
and 31(1) of the IBC read with regulation 39(4) of
the Insolvency and Bankruptcy Board of India (IBBI)
(Insolvency Resolution Process for Corporate
Persons) Regulations, 2016 in short regulations for
approval of the Resolution Plan dated 10.01.2023 of
CIVIL APPEAL NO(S). 11070 – 11071 OF 2024
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consortium Respondent No. 5 herein had been
allowed.
3. It needs to be noted here at this stage that the
appeals were preferred without any application for
condonation of delay by the appellant herein with a
declaration in Paragraph 6 of the grounds of appeal
that the same is within the period specified in
Section 61 of the IBC. Upon notice having been
issued to the respondents in the appeals, objection
was raised by the respondents to the effect that the
appeals were beyond the period of limitation,
applications for condonation of delay were preferred
in both the appeals.
4. Since the first appeal had been filed along with free
certified copy, which, on being ready and became
available on 01.08.2023 was made the basis to
assert in the application that the appeal was within
limitation whereas in the application in the other
appeal, it was asserted that the period of limitation
would begin from the date of knowledge of the
contents of the Order which was made available to
the appellant by the ‘RP’ on 07.08.2023, therefore
the appeal was within limitation. Although it was
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mentioned that the copies have been applied for by
instructing the counsel, but no proofs thereof have
been submitted rather at a subsequent stage it is
admitted as a matter of fact that the appellant has
not applied for the certified copy of any of the
Orders.
5. The NCLAT, Chennai proceeded to decide the
question with regard to the period of limitation and
the justification which is sought to have been given
by the appellant for the delay in filing the appeals
as also the mis-statement made in the ground of
appeal and dismissed the same. The reasons for the
same were that the appellant is guilty of
suppression of correct facts and making wrong
averments in para 6 and 17 of the grounds of appeal
where it is asserted that the appeals have been
preferred within the time as specified under the
statute. The factum with regard to the certified copy
having been applied for by the appellant has also
been informed to be not correct and therefore the
application preferred in the second appeal for
dispensing with the certified copy has also been
stated to be a mis-statement apart from the fact that
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the appellant had taken a totally new stand in the
application for condonation of delay which is
contrary to the stand taken in the grounds of
appeal. The applications for condonation of delay
were therefore dismissed leading to the dismissal of
the appeals.
6. Learned senior counsel for the appellant, although
on facts, could not dispute the findings as returned
by the NCLAT but had however sought to assert
that, the appeals as have been filed being within the
permissible period where the delay could be
condoned by the NCLAT as provided for under
Section 12(3) of the Limitation Act. The Appellate
Tribunal could not dismiss the application or the
appeal. Reliance has also been placed on Section 61
of the IBC especially proviso to sub-section (2)
thereto. The said proviso allows an additional period
of 15 days to file an appeal beyond the initial period
of 30 days. It is on this basis asserted that since 45
days had not passed on the date of filing the appeal
from the date of pronouncement of the Order i.e.
th
20 of July, 2023 by the NCLAT, the delay in filing
the appeal should have been condoned.
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7. It is submitted that the appellant instructed his
Counsel to obtain a certified copy of the order on the
date the order was pronounced by the NCLT. The
free certified copy thereof was made ready and given
to the appellant on 01.08.2023. The limitation, if
taken from the date of pronouncement of the Order
th
would end on 19 August 2023 whereas the appeal
th
has been filed on 28 August 2023. Therefore, the
delay is of ten days. He, however, submits that
unless the contents of the order are known, no
effective appeal can be filed by the party and thus,
the limitation is to be counted from the date of the
knowledge of the contents of the Order. The appeal,
in any case, could not have been filed as the Order
was not available to the appellant prior to the receipt
thereof and the appeal would, in such
circumstances, be within limitation. In any case, it
is asserted that even if the limitation is to be seen
from the initial date of pronouncement, the delay
being of only ten days, the same was condonable by
NCLAT as the extended period would come to an end
much thereafter, it is on this basis submitted that
the NCLAT should have accepted the prayer in the
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application for condonation of delay and heard the
matter on merits.
8. Counsel, in any case contended, that the non-filing
of the application for condonation of delay along
with the appeal would not be fatal as it is a curable
defect. Assertion has also been made that the period
of ten days has been consumed in seeking the legal
opinion and preparing the appeal which should
have been taken into consideration by NCLAT for
condoning the delay as this could be a sufficient
cause to the satisfaction of the Appellate Tribunal.
9. In the other appeal, it has been asserted that the
same was filed without the certified copy and an
application has been preferred seeking dispensation
of the filing of the certified copy on the plea that the
copy has been lost in transit. Reliance has been
placed upon the judgment of this Court in Sesh
Nath Singh & Anr. V. Baidyabati Sheoraphuli
1
Co-operative Bank Ltd and Anr to contend that
application for the purpose of condonation of delay
is not required to be filed. On this basis, prayer has
1
2021 (7) SCC 313
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been made for setting aside the impugned order,
allow the present appeal, to condone the delay in
filing the appeals and remand them to the NCLAT
for fresh decision on merits.
10. Learned counsel for the respondents on the other
hand has opposed the prayer as has been made by
the counsel for the appellant and has supported the
Order passed by the NCLAT on the same grounds as
has been put forth in the impugned order. Since the
facts are borne out from the pleadings itself, it is
asserted by the senior counsel for the respondents
that no certified copy had been applied for by the
appellant. The appeal was filed on 28.08.2023
whereas the impugned Order was pronounced by
th
NCLT on 20 July 2023. The period expired on
19.08.2023 i.e. 30 days as provided under Section
61(2) of IBC that the counsel has stressed upon the
fact that the appellant had not come to the Court
with clean hands and is guilty of supressing facts.
Reference has been made to para 6 and 17 of the
grounds of appeal wherein para 6 it was declared
that the appeal had been filed within the period of
limitation while in para 17, assertion has been made
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that the appellant had applied for the certified copy
of the Order on 01.08.2023 and received the same
on 10.08.2023 seeking exclusion of this period of
ten days under Section 12(3) of the Limitation Act,
1963. Non-filing of the application for condonation
of delay along with the appeal has also been
asserted to be unacceptable when under the proviso
it is so permissible. However, he asserts that the
said application was filed on 06.12.2023 which is
much beyond the permissible period. Further, a
new stand has been taken in the application for
condonation of delay contrary to the appeal.
Whereas, as a matter of fact, it is admitted in both
cases that certified copy was never applied for
supporting the findings. For the reason given by
NCLAT in the impugned order, Counsel has prayed
for dismissal of the appeals.
11. Having considered the submissions made by the
Counsel for the parties and going through the
pleadings and the law, as has been settled by this
Court, we are unable to accept the prayer of the
appellant and find the reasons as assigned by the
Appellate Tribunal while passing the impugned
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order to be justified and in accordance with law for
declining the prayer for condonation of delay. Thus,
rightly dismissing the appeals as barred by
limitation.
12. The facts are not in dispute and therefore are not
being repeated. As is apparent, first appeal was
preferred along with the free certified copy which
was made ready and available after the
th
pronouncement of the Order of 20 July 2023 on
01.08.2023. It is an admitted position on facts that
in the second appeal, no certified copy was
appended. Rather, an application for exemption
from filing of the certified copy was filed with an
assertion that the certified copy had been applied
for. In the absence of any certified copy having been
applied for, the period of limitation would start from
the very next day of pronouncement of the order i.e.,
21.07.2023 as the date of pronouncement of the
Order stands excluded as per Section 61 of the IBC.
Section 61 of the IBC reads as follows:-
61. Appeals and Appellate Authority. — (1)
Notwithstanding anything to the contrary
contained under the Companies Act, 2013 (18 of
2013) any person aggrieved by the order of the
Adjudicating Authority under this part may
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prefer an appeal to the National Company Law
Appellate Tribunal.
(2) Every appeal under sub-section (1) shall be
filed within thirty days before the National
Company Law Appellate Tribunal:
Provided that the National Company Law
Appellate Tribunal may allow an appeal to be filed
after the expiry of the said period of thirty days if
it is satisfied that there was sufficient cause for
not filing the appeal but such period shall not
exceed fifteen days.
(3) An appeal against an order approving a
resolution plan under section 31 may be filed on
the following grounds, namely:—
( i ) the approved resolution plan is in
contravention of the provisions of any law for
the time being in force;
( ii ) there has been material irregularity in
exercise of the powers by the resolution
professional during the corporate insolvency
resolution period;
( iii ) the debts owed to operational creditors of
the corporate debtor have not been provided
for in the resolution plan in the manner
specified by the Board;
( iv ) the insolvency resolution process costs
have not been provided for repayment in
priority to all other debts; or
( v ) the resolution plan does not comply with
any other criteria specified by the Board.
(4) An appeal against a liquidation order passed
under section 33, or sub-section (4) of Section
54L, or sub-section (4) of Section 54N, may be
filed on grounds of material irregularity or fraud
committed in relation to such a liquidation order.
(5) An appeal against an order for initiation of
corporate insolvency resolution process passed
under sub-section (2) of Section 54-O, may be
filed on grounds of material irregularity or fraud
committed in relation to such an order.
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13. A perusal of the above Section would show that any
party which is aggrieved by decision of the NCLT can
file an appeal before the NCLAT. A feature which
needs to be highlighted here is that this provision
begins with a non obstante clause signifying an
overriding effect of this provision in case of some
contradistinction with the contents contemplated in
the Companies Act, 2013 .
14. Statutory time limit of 30 days within which an
appeal can be preferred has been provided for in
sub-section (2) of Section 61 of IBC. Proviso thereto
allows an additional period of 15 days to file an
appeal only on the satisfaction of NCLAT that there
was sufficient cause for not filing the appeal earlier
within the initial period of 30 days. The restrictions
with regard to allowing extension in the provisions
stipulated is cloaked in such a manner that the
provisions have to be strictly followed. The first
aspect is that the period is extendable by 15 days
and not beyond that. The limit, therefore, has been
prescribed as regards the period within which the
discretion has to be applied by NCLAT. That apart,
this period cannot be claimed as a matter of right
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for extension of the limitation rather it is laced with
the satisfaction at the end of the NCLAT upon
having shown sufficient cause. The discretion,
therefore, has further been circumscribed and not
merely left at the whims and fancy of NCLAT. The
cumulative reading of the proviso would therefore
entail that the extension of period so provided for
has to be strictly construed and has not to be
exercised in a liberal manner which highlights the
legislative intent which has to be given effect to.
15. With these principles in mind, the applicability of
the provisions as provided for under the Limitation
Act, 1963 has to be entailed.
16. Rule 50 of the NCLAT Rules makes it mandatory for
the Registry to send the certified copy of the final
Order passed by NCLT to the concerned parties free
of cost and the certified copies may be made
available with costs as per the schedule of fees in all
other cases. Rule 22 of the NCLAT Rules deals with
the presentation of the appeal in form NCLAT-1.
Sub-rule 2 thereof mandates that an appeal shall be
accompanied by the certified copy of the impugned
order.
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17. This Court had an occasion to deal with a question
regarding the primacy of the provisions of IBC vis-à-
vis the Companies Act, 2013 in V Nagarajan Vs.
2
SKS Ispat and Power Limited . The primary
contention raised by the appellants therein was the
non-availability of the certified copies of the Order
and exclusion of their period of non-availability from
the period of limitation for filing appeal under
Section 61(2) of the IBC, 2016. This Court while
dealing with Section 421(3) of the Companies Act,
2013 and Section 61(2) of IBC adopted a purposive
interpretation and observed that the use of phrase
“from the date on which a copy of the Order of the
Tribunal is made available to the person aggrieved”
in Section 421(3) of the Companies Act, 2013 is
indicative of the overt intention of the legislature to
commence the period of limitation only upon the
receipt of certified copies of the order by the
aggrieved party. However, the scheme of Section 61
of the IBC, 2016 does not contain the condition for
commencement of period of limitation only after
obtaining a certified copy of the Order. Thereby
2
[2021] 14 SCR 736
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refuting the justification of non-availability of
certified copy of the Order offered for delay in filing
the appeal. While harmoniously approaching and
reading the Code and the provisions of the
Companies Act, 2013 , primacy of Code was said to
be established being the intent of the legislature.
This Court did not allow the litigants to await the
receipt of certified copies as it would upset the time
bound framework of IBC if Section 421 of the
Companies Act, 2013 is allowed to operate. The
limitation thus, starts from the date of
pronouncement of the Order and not from the date
the Order is made available to the parties.
18. It can, thus, be concluded that the litigant has to
file its appeal under Section 61(2) within 30 days
which can be extended up to a period of 15 days,
and no more, upon showing sufficient cause. A slate
of interpretation of procedural rules cannot be used
to defeat the substantive objective of legislation
which is prescribed in a time frame. As a result,
thereof, the period of limitation for filing the appeal
having been laid down and proviso thereto limiting
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the exercise up to a distance for condoning the delay
mandatorily has to be adhered to.
19. Referring to Rule 22 of the NCLAT Rules the Court
concluded that the parties cannot be automatically
dispensed with the obligation to apply for and obtain
a certified copy of the impugned order for filing an
appeal. However, the time taken by the Court to
prepare the decree or Order cannot be excluded
under Section 12 of the Limitation Act before the
application to obtain a certified copy thereof is
made. The right to receive a free copy under Section
420(3) of the Companies Act, 2013 does not obviate
the obligation of the appellant to seek a certified
copy through an application. The Court further
went on to observe that the frequent grant of waivers
in filing the certified copy of the impugned order do
not confer an automatic right on an applicant for
dispensing with compliance of the requirement as
laid down under Rule 22(2) of the NCLAT Rules
negatory.
20. Mandate of Rule 22(2) of NCLAT Rules has to be
complied with which requires certified copy to be
annexed along with appeal which binds a litigant
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under the IBC. The appellant having failed to apply
for certified copy renders appeal filed before the
NCLAT as clearly barred by limitation.
21. This Court in Cethar Limited (Resolution
3
Professional) Vs. SKS Ispat & Power Ltd.
held
that the appellant did not even attempt to secure a
certified copy and only relied on the date of
uploading the Order on the website that is
12.03.2020 whereas the pronouncement in open
Court was on 31.12.2019 and that too in the
presence of the appellant before NCLT. This Court
denied the benefit of condonation of delay on
account of absence of any effort on the part of the
appellant within the statutory period of limitation to
obtain the certified copy of the impugned Order
therein.
22. In National Spot Exchange Limited vs. Anil
Kohli, Resolution Professional for Dunar Foods
4
Limited , this Court reaffirmed the position of law
that an appeal must be filed within 30 days and in
any case, delay beyond 15 days cannot be condoned
3
(2002) 2 SCC 244
4
(2022) 11 SCC 761
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in terms of Section 61(2) of the IBC. This Court
further refused to exercise its extraordinary power
under Article 142 of Constitution of India to
condone the delay holding that such power could
not be exercised against the express provisions of
the statute upholding the Order of the NCLAT that
the Appellate Tribunal had no jurisdiction at all to
condone the delay exceeding 15 days beyond the
period of 30 days as contemplated under Section
61(2) of the IBC.
23. In Sanjay Pandurang Kalate Vs. Vistra ITCL
5
India Pvt. Ltd. , this Court had an occasion to deal
with the case where an application was heard by
NCLT on 17.05.2023 but no order was pronounced.
The Order came to be uploaded by the Registry on
th
30 April 2023 directly carrying the date of the
Order as 17.05.2023. The appellant applied for the
th
certified copy on 30 May 2023 which was received
on 01.06.2023 and the appeal was filed in NCLAT
on 10.07.2023 along with the application for
condonation of delay. The issue which was dealt by
this Court in this case was as to which date triggers
5
(2024) 3 SCC 27
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limitation to commence when the matter is
conclusively heard on one day and the Order is
directly uploaded on the website on another. It was
held that the period to compute limitation to file an
appeal under Section 61 IBC from the Order of NCLT
commences from the date of uploading of the Order
by the Registry as the commencement of the period
of Limitation is intrinsically linked to the date of
pronouncement.
24. Therefore, the incident which triggers limitation to
commence is the date of pronouncement of the
Order and in case of non-pronouncement of the
Order when the hearing concludes, the date on
which the Order is pronounced or uploaded on the
website.
25. However, where the judgment was pronounced in
open Court, the period of limitation starts running
from that very day. The appellant is however entitled
to seek relief under Section 12(2) of the Limitation
Act for excluding the period during which the
certified copy was under preparation on an
application preferred by that party.
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26. In light of the above legally settled position, when
the facts of the present case is seen, the first thing
which is apparent is that in the absence of any
certified copy having been applied by the appellant
th
of the impugned orders dated 20 July 2023 passed
by the NCLT on which it was admittedly
pronounced, with Rule 22 of the NCLAT Rules
mandating filing of the appeal along with the
certified copy. The appeals as preferred by the
appellant need to be dismissed as they were filed
beyond 30 days and no steps have been taken by
the appellant to seek certified copy of the order.
27. That apart, the second appeal, on this score alone
is to be dismissed as there is no question of moving
an application for condonation of delay when no
application for obtaining a certified copy of the order
has been filed. Exemption from filing of certified
copy, as has been referred to above, cannot be
claimed as a matter of right in terms of the statutory
requirements of the Rules. As regards the first
appeal, which was accompanied with the certified
copy supplied free by NCLT the same also being
beyond the period of limitation and the time of ten
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days as sought to be exempted for the preparation
and making available the certified copy cannot be
credited to the benefit of the appellant as the period
of limitation commences from the date of
pronouncement of the order and the benefit of
Section 12(2) of the Limitation Act is available only
on an application for grant of certified copy of the
Order having been filed till the date of preparation
of the said certified copy. Since no such steps have
been taken by the appellant for applying the
certified copy, the appeal was beyond limitation.
28. The application of condonation of delay in the first
appeal, disclosing no reasons whatsoever in filing
the appeal, the Appellate Tribunal was justified in
dismissing the application for condonation of delay.
The satisfaction has to be of the Appellate Tribunal
and that too on justifiable grounds, which, as is
apparent, from the perusal of the application there
is none pleaded which can be said to be projecting
sufficient cause for not approaching the Appellate
Tribunal within the time stipulated under Section
61(2) of the IBC.
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29. The other reasons as has been assigned by the
Appellate Tribunal for rejecting the application for
condonation is clearly borne out from the pleading
and the facts which do not call for any interference
in the present appeals.
30. In view of the above, we uphold the impugned order
dated 18.01.2024 passed by the NCLAT and dismiss
the present appeals.
31. There shall be no orders on costs.
32. Pending application(s), if any, shall stand disposed
of.
.....………………………………. J.
[ ABHAY S. OKA ]
......………………………………. J.
[ AHSANUDDIN AMANULLAH ]
………………………………………J.
[ AUGUSTINE GEORGE MASIH ]
NEW DELHI;
APRIL 04, 2025
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.11070 - 11071 OF 2024
(@ DIARY NO. 10029 OF 2024)
A RAJENDRA … APPELLANT
VERSUS
GONUGUNTA MADHUSUDHAN RAO
& ORS ... RESPONDENT (S)
J U D G M E N T
AUGUSTINE GEORGE MASIH, J.
1. These appeals have been preferred against the
Order dated 18.01.2024 passed by the National
Company Law Appellate Tribunal (hereinafter
referred to as “NCLAT”) where appeals preferred by
the appellant herein stand dismissed as a
consequence of dismissal of the applications of
condonation of delay on the even date.
Signature Not Verified
Digitally signed by
NARENDRA PRASAD
Date: 2025.04.04
16:56:24 IST
Reason:
CIVIL APPEAL NO(S). 11070 – 11071 OF 2024
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2. Two appeals were preferred before the NCLAT
against two separate orders passed on 20.07.2023
by the National Company Law Tribunal (hereinafter
referred to as “NCLT”) where an application filed by
the appellant herein who is the shareholder and
suspended Managing Director of Dharti Dredging
and Infrastructure Limited (Corporate Debtor) under
Section 60(5) read with Section 35(1)(N) of the
Insolvency and Bankruptcy Code, 2016 (hereinafter
referred to as “IBC”) seeking a direction to the
respondent(s) to place the Resolution Plans
submitted by him before the Committee of Creditors
(CoC) for consideration along with the other
Resolution Plan and for staying the voting results on
the Resolution Plan which was dismissed and
another application preferred by Respondent No. 1,
Resolution Professional of the Corporate Debtor
(hereinafter referred to as “RP”) under Section 30(6)
and 31(1) of the IBC read with regulation 39(4) of
the Insolvency and Bankruptcy Board of India (IBBI)
(Insolvency Resolution Process for Corporate
Persons) Regulations, 2016 in short regulations for
approval of the Resolution Plan dated 10.01.2023 of
CIVIL APPEAL NO(S). 11070 – 11071 OF 2024
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consortium Respondent No. 5 herein had been
allowed.
3. It needs to be noted here at this stage that the
appeals were preferred without any application for
condonation of delay by the appellant herein with a
declaration in Paragraph 6 of the grounds of appeal
that the same is within the period specified in
Section 61 of the IBC. Upon notice having been
issued to the respondents in the appeals, objection
was raised by the respondents to the effect that the
appeals were beyond the period of limitation,
applications for condonation of delay were preferred
in both the appeals.
4. Since the first appeal had been filed along with free
certified copy, which, on being ready and became
available on 01.08.2023 was made the basis to
assert in the application that the appeal was within
limitation whereas in the application in the other
appeal, it was asserted that the period of limitation
would begin from the date of knowledge of the
contents of the Order which was made available to
the appellant by the ‘RP’ on 07.08.2023, therefore
the appeal was within limitation. Although it was
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mentioned that the copies have been applied for by
instructing the counsel, but no proofs thereof have
been submitted rather at a subsequent stage it is
admitted as a matter of fact that the appellant has
not applied for the certified copy of any of the
Orders.
5. The NCLAT, Chennai proceeded to decide the
question with regard to the period of limitation and
the justification which is sought to have been given
by the appellant for the delay in filing the appeals
as also the mis-statement made in the ground of
appeal and dismissed the same. The reasons for the
same were that the appellant is guilty of
suppression of correct facts and making wrong
averments in para 6 and 17 of the grounds of appeal
where it is asserted that the appeals have been
preferred within the time as specified under the
statute. The factum with regard to the certified copy
having been applied for by the appellant has also
been informed to be not correct and therefore the
application preferred in the second appeal for
dispensing with the certified copy has also been
stated to be a mis-statement apart from the fact that
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the appellant had taken a totally new stand in the
application for condonation of delay which is
contrary to the stand taken in the grounds of
appeal. The applications for condonation of delay
were therefore dismissed leading to the dismissal of
the appeals.
6. Learned senior counsel for the appellant, although
on facts, could not dispute the findings as returned
by the NCLAT but had however sought to assert
that, the appeals as have been filed being within the
permissible period where the delay could be
condoned by the NCLAT as provided for under
Section 12(3) of the Limitation Act. The Appellate
Tribunal could not dismiss the application or the
appeal. Reliance has also been placed on Section 61
of the IBC especially proviso to sub-section (2)
thereto. The said proviso allows an additional period
of 15 days to file an appeal beyond the initial period
of 30 days. It is on this basis asserted that since 45
days had not passed on the date of filing the appeal
from the date of pronouncement of the Order i.e.
th
20 of July, 2023 by the NCLAT, the delay in filing
the appeal should have been condoned.
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7. It is submitted that the appellant instructed his
Counsel to obtain a certified copy of the order on the
date the order was pronounced by the NCLT. The
free certified copy thereof was made ready and given
to the appellant on 01.08.2023. The limitation, if
taken from the date of pronouncement of the Order
th
would end on 19 August 2023 whereas the appeal
th
has been filed on 28 August 2023. Therefore, the
delay is of ten days. He, however, submits that
unless the contents of the order are known, no
effective appeal can be filed by the party and thus,
the limitation is to be counted from the date of the
knowledge of the contents of the Order. The appeal,
in any case, could not have been filed as the Order
was not available to the appellant prior to the receipt
thereof and the appeal would, in such
circumstances, be within limitation. In any case, it
is asserted that even if the limitation is to be seen
from the initial date of pronouncement, the delay
being of only ten days, the same was condonable by
NCLAT as the extended period would come to an end
much thereafter, it is on this basis submitted that
the NCLAT should have accepted the prayer in the
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application for condonation of delay and heard the
matter on merits.
8. Counsel, in any case contended, that the non-filing
of the application for condonation of delay along
with the appeal would not be fatal as it is a curable
defect. Assertion has also been made that the period
of ten days has been consumed in seeking the legal
opinion and preparing the appeal which should
have been taken into consideration by NCLAT for
condoning the delay as this could be a sufficient
cause to the satisfaction of the Appellate Tribunal.
9. In the other appeal, it has been asserted that the
same was filed without the certified copy and an
application has been preferred seeking dispensation
of the filing of the certified copy on the plea that the
copy has been lost in transit. Reliance has been
placed upon the judgment of this Court in Sesh
Nath Singh & Anr. V. Baidyabati Sheoraphuli
1
Co-operative Bank Ltd and Anr to contend that
application for the purpose of condonation of delay
is not required to be filed. On this basis, prayer has
1
2021 (7) SCC 313
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been made for setting aside the impugned order,
allow the present appeal, to condone the delay in
filing the appeals and remand them to the NCLAT
for fresh decision on merits.
10. Learned counsel for the respondents on the other
hand has opposed the prayer as has been made by
the counsel for the appellant and has supported the
Order passed by the NCLAT on the same grounds as
has been put forth in the impugned order. Since the
facts are borne out from the pleadings itself, it is
asserted by the senior counsel for the respondents
that no certified copy had been applied for by the
appellant. The appeal was filed on 28.08.2023
whereas the impugned Order was pronounced by
th
NCLT on 20 July 2023. The period expired on
19.08.2023 i.e. 30 days as provided under Section
61(2) of IBC that the counsel has stressed upon the
fact that the appellant had not come to the Court
with clean hands and is guilty of supressing facts.
Reference has been made to para 6 and 17 of the
grounds of appeal wherein para 6 it was declared
that the appeal had been filed within the period of
limitation while in para 17, assertion has been made
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that the appellant had applied for the certified copy
of the Order on 01.08.2023 and received the same
on 10.08.2023 seeking exclusion of this period of
ten days under Section 12(3) of the Limitation Act,
1963. Non-filing of the application for condonation
of delay along with the appeal has also been
asserted to be unacceptable when under the proviso
it is so permissible. However, he asserts that the
said application was filed on 06.12.2023 which is
much beyond the permissible period. Further, a
new stand has been taken in the application for
condonation of delay contrary to the appeal.
Whereas, as a matter of fact, it is admitted in both
cases that certified copy was never applied for
supporting the findings. For the reason given by
NCLAT in the impugned order, Counsel has prayed
for dismissal of the appeals.
11. Having considered the submissions made by the
Counsel for the parties and going through the
pleadings and the law, as has been settled by this
Court, we are unable to accept the prayer of the
appellant and find the reasons as assigned by the
Appellate Tribunal while passing the impugned
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order to be justified and in accordance with law for
declining the prayer for condonation of delay. Thus,
rightly dismissing the appeals as barred by
limitation.
12. The facts are not in dispute and therefore are not
being repeated. As is apparent, first appeal was
preferred along with the free certified copy which
was made ready and available after the
th
pronouncement of the Order of 20 July 2023 on
01.08.2023. It is an admitted position on facts that
in the second appeal, no certified copy was
appended. Rather, an application for exemption
from filing of the certified copy was filed with an
assertion that the certified copy had been applied
for. In the absence of any certified copy having been
applied for, the period of limitation would start from
the very next day of pronouncement of the order i.e.,
21.07.2023 as the date of pronouncement of the
Order stands excluded as per Section 61 of the IBC.
Section 61 of the IBC reads as follows:-
61. Appeals and Appellate Authority. — (1)
Notwithstanding anything to the contrary
contained under the Companies Act, 2013 (18 of
2013) any person aggrieved by the order of the
Adjudicating Authority under this part may
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prefer an appeal to the National Company Law
Appellate Tribunal.
(2) Every appeal under sub-section (1) shall be
filed within thirty days before the National
Company Law Appellate Tribunal:
Provided that the National Company Law
Appellate Tribunal may allow an appeal to be filed
after the expiry of the said period of thirty days if
it is satisfied that there was sufficient cause for
not filing the appeal but such period shall not
exceed fifteen days.
(3) An appeal against an order approving a
resolution plan under section 31 may be filed on
the following grounds, namely:—
( i ) the approved resolution plan is in
contravention of the provisions of any law for
the time being in force;
( ii ) there has been material irregularity in
exercise of the powers by the resolution
professional during the corporate insolvency
resolution period;
( iii ) the debts owed to operational creditors of
the corporate debtor have not been provided
for in the resolution plan in the manner
specified by the Board;
( iv ) the insolvency resolution process costs
have not been provided for repayment in
priority to all other debts; or
( v ) the resolution plan does not comply with
any other criteria specified by the Board.
(4) An appeal against a liquidation order passed
under section 33, or sub-section (4) of Section
54L, or sub-section (4) of Section 54N, may be
filed on grounds of material irregularity or fraud
committed in relation to such a liquidation order.
(5) An appeal against an order for initiation of
corporate insolvency resolution process passed
under sub-section (2) of Section 54-O, may be
filed on grounds of material irregularity or fraud
committed in relation to such an order.
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13. A perusal of the above Section would show that any
party which is aggrieved by decision of the NCLT can
file an appeal before the NCLAT. A feature which
needs to be highlighted here is that this provision
begins with a non obstante clause signifying an
overriding effect of this provision in case of some
contradistinction with the contents contemplated in
the Companies Act, 2013 .
14. Statutory time limit of 30 days within which an
appeal can be preferred has been provided for in
sub-section (2) of Section 61 of IBC. Proviso thereto
allows an additional period of 15 days to file an
appeal only on the satisfaction of NCLAT that there
was sufficient cause for not filing the appeal earlier
within the initial period of 30 days. The restrictions
with regard to allowing extension in the provisions
stipulated is cloaked in such a manner that the
provisions have to be strictly followed. The first
aspect is that the period is extendable by 15 days
and not beyond that. The limit, therefore, has been
prescribed as regards the period within which the
discretion has to be applied by NCLAT. That apart,
this period cannot be claimed as a matter of right
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for extension of the limitation rather it is laced with
the satisfaction at the end of the NCLAT upon
having shown sufficient cause. The discretion,
therefore, has further been circumscribed and not
merely left at the whims and fancy of NCLAT. The
cumulative reading of the proviso would therefore
entail that the extension of period so provided for
has to be strictly construed and has not to be
exercised in a liberal manner which highlights the
legislative intent which has to be given effect to.
15. With these principles in mind, the applicability of
the provisions as provided for under the Limitation
Act, 1963 has to be entailed.
16. Rule 50 of the NCLAT Rules makes it mandatory for
the Registry to send the certified copy of the final
Order passed by NCLT to the concerned parties free
of cost and the certified copies may be made
available with costs as per the schedule of fees in all
other cases. Rule 22 of the NCLAT Rules deals with
the presentation of the appeal in form NCLAT-1.
Sub-rule 2 thereof mandates that an appeal shall be
accompanied by the certified copy of the impugned
order.
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17. This Court had an occasion to deal with a question
regarding the primacy of the provisions of IBC vis-à-
vis the Companies Act, 2013 in V Nagarajan Vs.
2
SKS Ispat and Power Limited . The primary
contention raised by the appellants therein was the
non-availability of the certified copies of the Order
and exclusion of their period of non-availability from
the period of limitation for filing appeal under
Section 61(2) of the IBC, 2016. This Court while
dealing with Section 421(3) of the Companies Act,
2013 and Section 61(2) of IBC adopted a purposive
interpretation and observed that the use of phrase
“from the date on which a copy of the Order of the
Tribunal is made available to the person aggrieved”
in Section 421(3) of the Companies Act, 2013 is
indicative of the overt intention of the legislature to
commence the period of limitation only upon the
receipt of certified copies of the order by the
aggrieved party. However, the scheme of Section 61
of the IBC, 2016 does not contain the condition for
commencement of period of limitation only after
obtaining a certified copy of the Order. Thereby
2
[2021] 14 SCR 736
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refuting the justification of non-availability of
certified copy of the Order offered for delay in filing
the appeal. While harmoniously approaching and
reading the Code and the provisions of the
Companies Act, 2013 , primacy of Code was said to
be established being the intent of the legislature.
This Court did not allow the litigants to await the
receipt of certified copies as it would upset the time
bound framework of IBC if Section 421 of the
Companies Act, 2013 is allowed to operate. The
limitation thus, starts from the date of
pronouncement of the Order and not from the date
the Order is made available to the parties.
18. It can, thus, be concluded that the litigant has to
file its appeal under Section 61(2) within 30 days
which can be extended up to a period of 15 days,
and no more, upon showing sufficient cause. A slate
of interpretation of procedural rules cannot be used
to defeat the substantive objective of legislation
which is prescribed in a time frame. As a result,
thereof, the period of limitation for filing the appeal
having been laid down and proviso thereto limiting
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the exercise up to a distance for condoning the delay
mandatorily has to be adhered to.
19. Referring to Rule 22 of the NCLAT Rules the Court
concluded that the parties cannot be automatically
dispensed with the obligation to apply for and obtain
a certified copy of the impugned order for filing an
appeal. However, the time taken by the Court to
prepare the decree or Order cannot be excluded
under Section 12 of the Limitation Act before the
application to obtain a certified copy thereof is
made. The right to receive a free copy under Section
420(3) of the Companies Act, 2013 does not obviate
the obligation of the appellant to seek a certified
copy through an application. The Court further
went on to observe that the frequent grant of waivers
in filing the certified copy of the impugned order do
not confer an automatic right on an applicant for
dispensing with compliance of the requirement as
laid down under Rule 22(2) of the NCLAT Rules
negatory.
20. Mandate of Rule 22(2) of NCLAT Rules has to be
complied with which requires certified copy to be
annexed along with appeal which binds a litigant
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under the IBC. The appellant having failed to apply
for certified copy renders appeal filed before the
NCLAT as clearly barred by limitation.
21. This Court in Cethar Limited (Resolution
3
Professional) Vs. SKS Ispat & Power Ltd.
held
that the appellant did not even attempt to secure a
certified copy and only relied on the date of
uploading the Order on the website that is
12.03.2020 whereas the pronouncement in open
Court was on 31.12.2019 and that too in the
presence of the appellant before NCLT. This Court
denied the benefit of condonation of delay on
account of absence of any effort on the part of the
appellant within the statutory period of limitation to
obtain the certified copy of the impugned Order
therein.
22. In National Spot Exchange Limited vs. Anil
Kohli, Resolution Professional for Dunar Foods
4
Limited , this Court reaffirmed the position of law
that an appeal must be filed within 30 days and in
any case, delay beyond 15 days cannot be condoned
3
(2002) 2 SCC 244
4
(2022) 11 SCC 761
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in terms of Section 61(2) of the IBC. This Court
further refused to exercise its extraordinary power
under Article 142 of Constitution of India to
condone the delay holding that such power could
not be exercised against the express provisions of
the statute upholding the Order of the NCLAT that
the Appellate Tribunal had no jurisdiction at all to
condone the delay exceeding 15 days beyond the
period of 30 days as contemplated under Section
61(2) of the IBC.
23. In Sanjay Pandurang Kalate Vs. Vistra ITCL
5
India Pvt. Ltd. , this Court had an occasion to deal
with the case where an application was heard by
NCLT on 17.05.2023 but no order was pronounced.
The Order came to be uploaded by the Registry on
th
30 April 2023 directly carrying the date of the
Order as 17.05.2023. The appellant applied for the
th
certified copy on 30 May 2023 which was received
on 01.06.2023 and the appeal was filed in NCLAT
on 10.07.2023 along with the application for
condonation of delay. The issue which was dealt by
this Court in this case was as to which date triggers
5
(2024) 3 SCC 27
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limitation to commence when the matter is
conclusively heard on one day and the Order is
directly uploaded on the website on another. It was
held that the period to compute limitation to file an
appeal under Section 61 IBC from the Order of NCLT
commences from the date of uploading of the Order
by the Registry as the commencement of the period
of Limitation is intrinsically linked to the date of
pronouncement.
24. Therefore, the incident which triggers limitation to
commence is the date of pronouncement of the
Order and in case of non-pronouncement of the
Order when the hearing concludes, the date on
which the Order is pronounced or uploaded on the
website.
25. However, where the judgment was pronounced in
open Court, the period of limitation starts running
from that very day. The appellant is however entitled
to seek relief under Section 12(2) of the Limitation
Act for excluding the period during which the
certified copy was under preparation on an
application preferred by that party.
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26. In light of the above legally settled position, when
the facts of the present case is seen, the first thing
which is apparent is that in the absence of any
certified copy having been applied by the appellant
th
of the impugned orders dated 20 July 2023 passed
by the NCLT on which it was admittedly
pronounced, with Rule 22 of the NCLAT Rules
mandating filing of the appeal along with the
certified copy. The appeals as preferred by the
appellant need to be dismissed as they were filed
beyond 30 days and no steps have been taken by
the appellant to seek certified copy of the order.
27. That apart, the second appeal, on this score alone
is to be dismissed as there is no question of moving
an application for condonation of delay when no
application for obtaining a certified copy of the order
has been filed. Exemption from filing of certified
copy, as has been referred to above, cannot be
claimed as a matter of right in terms of the statutory
requirements of the Rules. As regards the first
appeal, which was accompanied with the certified
copy supplied free by NCLT the same also being
beyond the period of limitation and the time of ten
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days as sought to be exempted for the preparation
and making available the certified copy cannot be
credited to the benefit of the appellant as the period
of limitation commences from the date of
pronouncement of the order and the benefit of
Section 12(2) of the Limitation Act is available only
on an application for grant of certified copy of the
Order having been filed till the date of preparation
of the said certified copy. Since no such steps have
been taken by the appellant for applying the
certified copy, the appeal was beyond limitation.
28. The application of condonation of delay in the first
appeal, disclosing no reasons whatsoever in filing
the appeal, the Appellate Tribunal was justified in
dismissing the application for condonation of delay.
The satisfaction has to be of the Appellate Tribunal
and that too on justifiable grounds, which, as is
apparent, from the perusal of the application there
is none pleaded which can be said to be projecting
sufficient cause for not approaching the Appellate
Tribunal within the time stipulated under Section
61(2) of the IBC.
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29. The other reasons as has been assigned by the
Appellate Tribunal for rejecting the application for
condonation is clearly borne out from the pleading
and the facts which do not call for any interference
in the present appeals.
30. In view of the above, we uphold the impugned order
dated 18.01.2024 passed by the NCLAT and dismiss
the present appeals.
31. There shall be no orders on costs.
32. Pending application(s), if any, shall stand disposed
of.
.....………………………………. J.
[ ABHAY S. OKA ]
......………………………………. J.
[ AHSANUDDIN AMANULLAH ]
………………………………………J.
[ AUGUSTINE GEORGE MASIH ]
NEW DELHI;
APRIL 04, 2025
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