'Free Of Cost' Copy Of Order Sent By NCLT Registry Is Not A 'Certified Copy' For The Purpose Of Filing Appeal: NCLAT Chennai

Rule 22(2) of the NCLAT Rules, 2016 provides that every appeal shall be accompanied by a certified copy of the impugned order. It was observed that the Appellant's obligation to apply for a certified copy of the order to be challenged by paying requisite fees cannot be dispensed with.

Background Facts

On 24.11.2022, the NCLT pronounced an order in open court. Munagala Roja Harsha Vardhini (“Appellant”) was a party to the case before the NCLT.

As per Rule 50(2) of the National Company Law Tribunal Rules, 2016 (“NCLT Rules”), the Registry of the NCLT shall send a free of cost Certified Copy of the Final Order to the parties of the case. The parties can also obtain a Certified Copy of the order against payment of fee prescribed under NCLT Rules.

On 07.12.2022, the Appellant received the free of cost Certified Copy of the NCLT order dated 24.11.2022. Thereafter, on 19.01.2023 the Appellant e-filed an appeal before the NCLAT against the NCLT order dated 24.11.2022. Alongside, an application for condonation of delay in filing of appeal was also filed by the Appellant.

Section 61(2) of IBC provides a period of 30 days for filing an appeal against the order of NCLT. The Proviso to Section 61(2) of IBC states that NCLAT may allow an appeal beyond 30 days, by a maximum of fifteen days, on demonstration of sufficient cause for the delay.

Section 12(2) of the Limitation Act, 1963 states that while computing limitation for filing an appeal, review or revision, the date on which the judgment was pronounced and the time taken to obtain copy of the judgment shall be excluded.

The Appellant submitted that the limitation for filing of appeal would be computed from 07.12.2022 i.e. when the free of cost certified copy was received from NCLT Registry. Accordingly, the limitation period of 30 days to file the appeal would end on 06.01.2023. Hence, the appeal being filed on 19.01.2023, is within condonable limit of 45 days as per Section 61(2) proviso.

NCLAT Verdict

The Bench noted that the Appellant did not apply for certified copy of the NCLT order dated 24.11.2022 by paying fees as per NCLT Rules, 2016.

Rule 22(2) of the National Company Law Appellate Tribunal Rules, 2016 (“NCLAT Rules”) provides that every appeal shall be accompanied by a certified copy of the impugned order.

Rule 2(9) of NCLT Rules defines certified copy of a document to mean the same as certified copy of public documents defined per Section 76 of the Indian Evidence Act, 1872.

It was opined that as per Rule 50 of NCLT Rules, the requirement on the part of Appellant to apply for a certified copy by paying requisite fees cannot be dispensed with. The free of cost copy of final order is sent by Registry of NCLT to the parties in compliance of NCLT Rules and such copy cannot be substituted for a certified copy.

“A mere running of the eye over the rule 50 of the National Company Law Tribunal Rules, 2016 clearly points out that the Application of the Petitioner/Appellant to comply with a certified copy by paying the schedule of fees cannot be dispensed with and at best, the sending of the certified copy of final order by the authorities concerned, Free of Cost, is an obligation caused upon the Office of the Registry of the National Company Law Tribunal, as per National Company Law Tribunal Rules. Moreover, that the receipt of free of cost copy, the Petitioner/Appellant, by receiving the same, and after recovering from illness, cannot be a substitute for a Certified Copy of the Impugned Order, to accompany the Appeal as per Rule 22(2) of the National Company Law Appellate Tribunal Rules, 2016.”

The Bench concluded that the free of cost copy of the NCLT Order dated 24.11.2022 is not a Certified Copy, as contemplated under Rule 22 of NCLAT Rules, 2016.

Further, in terms of Rule 150 of NCLT Rules, the date of pronouncement of order can only be the date on which the order was pronounced i.e. 24.11.2022. Therefore, the limitation to file appeal would run from the date of pronouncement and not the receipt of free of cost certified copy of impugned order.

“As far as the present case is concerned, the delay of 12 days has computed by the Petitioner/Appellant, in her Application, from the date of receipt of free copy on 07.12.2022 cannot be accepted and as per Rule 150 of the National Company Law Tribunal Rules, 2016, the Pronouncement date can only be the date on which the order was pronounced on 24.11.2022 by the Adjudicating Authority/Tribunal. If calculated from the date on which the instant Appeal came to be filed through e-portal on 19.01.2023, the actual delay comes (after the expiry of 30 days in preferring an Appeal) will be 26 days. In all there is a delay of 26 days which is beyond the condonable period of (30 + 15 = 45 days) being the outer limit, as provided under Section 61(2) of the Insolvency and Bankruptcy Code, 2016.”

It was observed that the Appellant has not filed an application seeking exemption from filing certified copy of the NCLT order. The Bench dismissed the appeal while holding that the appeal has been filed beyond the limitation period given under Section 61(2) of IBC.

Case title: Munagala Roja Harsha Vardhini v Vardhansmart Private Limited

Case No.: Company Appeal (AT) (CH) (Ins) No.23/2024

Counsel for Appellant: Mr. TK Bhaskar, Advocate For Mr.Mayan H Jain Mr. Pranav Gopalakrishnan & Mr. Niveditha Narayanan, Advocates.

Counsel for Respondents: Mr. Chandra Mouli Prabhakar, Advocate Mr. Vandhana Prabhu, Advocate.

Click Here to Read/Download Order