Free Copy Of NCLT Order & Copy Of Order Obtained On Paying Cost Are 'Certified Copies' For Filing NCLAT Appeal : Supreme Court

The Supreme Court today (September 27) set aside an order of the National Company Law Appellate Tribunal (NCLAT) which refused to condone delay in filling an appeal because of the filling of a 'free copy' of the impugned order.

The bench of CJI DY Chandrachud and Justice Manoj Misra held that there was no difference between a free certified copy of the order and a certified copy which is obtained after paying cost under Rule 50 of the National Company Law Tribunal Rules 2016. 

"Both the certified copy submitted free of cost as well as the certified copy which is made available on payment of cost are treated as "certified copies" for the purpose of Rule 50".

The present case relates to an application for initiation of CIRP under Section 7 of the Insolvency and Bankruptcy Code (IBC) 2016 by the State Bank of India against respondents - India Power Corporation. The application was dismissed by NCLT on October 30, 2023. The appeal before the NCLAT was filed on December 2, 2023. There was a delay of 3 days beyond the period of thirty days prescribed under Section 61 of the Insolvency and Bankruptcy Rules in filing the appeal.

The division bench had a divergence in opinion regarding the condonation of delay.

While the Judicial member observed that the certified copy supplied by SBI was a "free of cost copy" and not as per the rules, and hence, in the absence of an application for the grant of a certified copy, the delay of three days cannot be condoned.  The technical member favouring to condone the delay held that there should be no difference between the certified copy obtained on payment of fees and a free copy. 

The third judge (tie breaker) however held that a free copy provided under Rule 50 of the NCLT Rules cannot be treated as a certified copy which is referred to under Rule 22(2) of the NCLAT Rules 2016.

The Court examined Rule 22 (2) of NCLAT Rules 2016 as opposed Rule 50 of the NCLT Rules 2016. 

The Supreme Court noted that Rule 22 (2) of NCLAT Rules provides that every appeal filed shall be accompanied by a certified copy of the impugned order. Whereas Rule 50 of the NCLT Rules states that the registry shall send a certified copy free of cost. The Certified copy available on payment of costs is treated as certified copies under Rule 50. 

Rule 50 .The Registry to send certified copy- The Registry shall send a certified copy of final order passed to the parties concerned free of cost and the certified copies may be made available with cost as per Schedule of fees, in all other cases.

Referring to the Rule, the Court observed : "Rule 50 provides for a certified copy, provided free of cost, and a certified copy made available against the payment of cost. The point to note is that both the copy provided free of cost as well as the copy which is made available on an application made on that behalf are treated as "certified copies" for the purpose of the Rule."

"However, a litigant who does not apply for a certified copy cannot then fall back and claim that he was awaiting the grant of a free copy to obviate the bar of limitation," the Court added.

It was observed that the present facts of the case were different from what was held in the decision of V Nagarajan vs SKS Ispat and Power Ltd. In Nagarajan, the Court held that Rule 22(2) of the NCLAT Rules mandates that an appeal has to be filed with a certified copy of the 'impugned order'. Section 12 of the Limitation Act exempts the period between the date of application for certified copy of the order and the date of receipt of the same from the period of limitation. However, the period before the date of application is not excluded. 

In Nagarajan, the subject order was pronounced by the NCLT on December 31, 2019. The corrected copy of the order was uploaded only on March 20, 2020. The appellant applied for a free copy on March 23, 2020, and claimed that the same has not been received. However, by the time the application for the certified copy was made, the period of limitation for filing the appeal was already over on February 14, 2020.

In the present case, a free copy was supplied on  November 14, 2023, and the appeal was filed on December 2, 2023 with a delay of just 3 days falling under the condonable limit of 30 days plus 15 days. 

"Therefore sufficient cause was shown for condoning the delay of 3 days,"  CJI observed. 

Referring to NCLT Rule 50, the Court set aside the NCLAT order, condoned the 3 days delay and restored the appeal for NCLAT's adjudication afresh. 

"Bearing in mind the provisions of Rule 50 NCLT of 2016 Rules which places both the free certified copy as well as the certified copy which was applied for on the same footing, we are of the view that the appeal in the present case was filed within the condonable period of 15 days which should have been condoned. We accordingly allow the appeal and set aside the impugned order of the NCLAT . The delay shall stand condoned. The delay of 3 days in filing shall stand condoned and the appeal shall stand restored to the file of the NCLAT." 

The Court heard the arguments of Advocate Surabhi Khattar and Solicitor General of India Tushar Mehta for the appellant and Senior Advocate Dr AM Singhvi for the respondent.

Case Details : State Bank of India v. India Power Corporation Ltd