Sanket Kumar Aggarwal & Anr VS. APG Logistics Pvt. Ltd. ( Case Summary )
The Supreme Court in Sanket Kumar Aggarwal & Anr Vs. APG Logistics Pvt. Ltd. (Civil Appeal No. 748/2023 ) has held that the time taken in preparation of certified copies and the day on which order is pronounced have to be excluded from computing period of limitation in an appeal from order of the National Company Law Tribunal (NCLT) to National Company Law Appellate Tribunal (NCLAT).
FACTS OF THE CASE
The Appellant has filed an application under Section 7 IBC for initiation for CIRP, which has been dismissed by the National on 26th August, 2022. The Appellant filed application for certified copy on 2nd September, 2022 which was received by the Registry of NCLT on 5th September. On 15th September, order was uploaded on the website of NCLT as well as certified copy was supplied to the Appellant. The Appellant filed Appeal before the NCLAT on 10th October, 2022 in e-filing mode alongwith Interlocutory Application seeking condonation of 5 days. A physical copy of appeal was filed with NCLAT on 31st October, 2022.
The NCLAT dismissed the Appeal for being barred by Limitation. The NCLAT observed that 30 days had expired on 24.09.2022. If an Appellate Tribunal (NCLA T), is satisfied on sufficient cause, being shown to its subjective satisfaction, in regard to the preferring of an Appeal (after the Expiry of 30 days period), then, such period, shall not exceed 15 days, as per Section 61 (2) of the Code. The `completion of 45 days’ (30 + 15 days), was on 09.10.2022. In effect, the maximum 45 days being the outer limit (30 + 15 = 45 days), beyond which, the Appellate Tribunal (NCLAT), is `bereft’ of any power, to `condone the delay. ‘
THE FINDINGS OF THE SUPREME COURT
The Supreme Court found that the appeal has been filed within limitation.
The Supreme Court held that Section 238 A of IBC makes applicable provision of Limitation Act, 1963 on proceedings before NCLT and NCLAT.
Rule 3 of the NCLAT rules, 2016 stipulates that for computation of time period the day from which the said period has to be reckoned has to be excluded. This is in line with Section 12 (1) of the Limitation Act, 1963 which states that in computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.
Further Rule 22 requires an appeal to the NCLAT filed accompanied with certified copy. Rule 103 of NCLAT Rules allows filing of Appeal through electronic mode.
The Supreme found that of the day of order is excluded the Appeal has been filed on 45th day rather than 46th day.
Furthermore, the Supreme Court held that in terms of Section 12(2) of the Limitation Act 1963, the time requisite for obtaining a copy of the order appealed from has to be excluded while computing the period of limitation. As such period of 10 days from 5th September, 2022 and 15th September, 2022 taken for preparation of certified copy should have been excluded.
The Supreme Court in the matter also observed that the Union government in its rule making capacity and the administrative heads of tribunals must ensure a seamless transition to working in the electronic mode.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.
