Ai-Sami Agro Products Private Limited vs Mrs. Duanhongli

[Appeal filed under Section 421 of the Companies Act,2013]

[Arising out of Impugned Order dated 19.12.2019 passed by the Adjudicating Authority, National Company Law Tribunal, Amravati Bench, Hyderabad]

In the matter of:

Al-Sami Agro Products Private Limited, Represented by its Director, Plot No.E-16, 17 & 18 Industrial Estate, Dowaleswaram, East Godavari District, State of Andhra Pradesh.

2 Mr. Abdul Salam S/o Shiekh Ismail, Director, Al Sami Agro Products Private Limited, Plot No.E-16, 17 & 18 Industrial Estate, Dowaleswaram, East Godavari District, State of Andhra Pradesh.

3. Mrs. Ajimunnisa Begum w/o Abdul Salem Director, Al Sami Agro Products Private Limited, D. No.45-1-13/1, Gorakshanapet, Kajahmund FV533 103, East Godavari District, State of Andhra Pradesh.

4. Md. Abdullah S/o Abdul Salem Director, Al Sami Agro Products Private Limited, Plot No. E-16, 17 & 18 Industrial Estate, Dowaleswaram, East Godavari District,

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 1 of 19 State of Andhra Pradesh.

5. Ms. Shaik Chandini w/o Md. Abdullah Director, Al Sami Agro Products Private Limited, D. No.45-1-13/1, Gorakshanapet, Rajahmundry-533 103, East Godavari District, State of Andhra Pradesh.

6. Mr. Shaik Khareem S/o Janna Sha Chief General Manager, Al Sami Aaro Products Private Limited, Plot No. E-16, 17 & 18 Industrial Estate, Dowalepwaram, East Godavari• District, State of Andhra Pradesh.

7. Ms. M. L. S.'Nandini Finance Manager, Al Sami Agro Products Private Limited, Plot No. E-16, 17 & 18 Industrial Estate, Dowaleswaram, East Godavari District, State of Andhra Pradesh. .... Appellants/Respondents

Versus,

l. Mrs. DuanHongli w/o Mr. Pengtau National of Republic of China, Londongpozu, Lianhencun, Huangjueya, Nanan Distr(ct, Chongqing, China-400060,

2. Mr. Ansari Faiyaz slo Nizamugdin, RIO Flat No. 1101,IC-wilng, Dudhwala Complex, 292, Belasis Road, Mumbai-400008, ...Respondents/Petitioners

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 2 of 19 Present : For Appellants : Mr. Aaditya A Pande, Advocate For Respondents : Mr. Javeed Hussain, Advocate

ORAL JUDGMENT

As per Justice Sharad Kumar Sharma Member(Judicial) ORDER (Hybrid Mode) 20 .11.2024:

Brief Facts of the Case are:

1. Brief facts of the Company Appeal are that the Respondents in their

capacity of being the Company Petitioners, have preferred a Company Petition

on 21st July 2018, as against the Appellants/Respondents, invoking the Provisions

contained under Section 96, 173, 241, 244 of the Companies Act of 2013,

contending thereof that, the present Appellants who were the Opposite Parties to

the proceedings were engaging themselves in an act of Oppression and

Mismanagement and particularly it was stated that they had initiated the

proceedings in a fashion to override the Arbitration Clause, as it was agreed

between the Parties in their Subscription and Shareholders Agreement of 21st July

2014.

2. The Appellant contended that, the entire proceedings in the Transfer

Company Petition No.124/241/AMR/TP/2019 [Company Petition

No.486/241/HDB/2018] was coloured in a manner to override the agreed

Arbitration Clause between the parties which had constituted to be a part and

parcel of the Subscription and Shareholder Agreement as contained under Class

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 3 of 19 33.2 that, in an event of there being any dispute between the parties, they would

be resorting to a Dispute Redressal Forum as agreed between the parties, as

contained under Clause 33.3.

3. The Company Petition thus preferred by the Respondent, was

accompanied with an application for grant of Interim Protection, during the

pendency of the Company Petition itself. The Appellants/Respondents in

Company Petition had appeared before the National Company Law Tribunal,

Amravati Bench on 10.10.2018, and they had filed their Preliminary Counter

Affidavit, raising an objection against the said relief prayed for by the

Respondents/Petitioners in Company Petition on the ground that, no interim relief

in the Company Petition was required to be granted to the

Respondents/Petitioners. Because, they had explicitly stated that they didn't have

any intention to sell the properties of the Appellant No.1/ the Company or to

reconstitute the Board of Directors of the Appellant No.1 Company, or to alter

the shareholding pattern of the Appellant No.1 Company.

4. They submitted in their objection that, apart from the aforesaid stand

taken by the Opposite Parties/Appellants, they submitted that, they only intended

to undertake certain inter se transfer of shares between the Promoters and had

submitted that in any event, if any such exigency arises for the grant of the relief

as prayed for by the Respondent in their Interim Relief Application, to carry out

any of the aforesaid actions carved as an exemption, they would be taking a prior

permission or a consent from the Learned Adjudicating Authority. Based upon

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 4 of 19 the aforesaid pleading on the objection raised to the Interim Relief Application,

the National Company Law Tribunal, Amaravati Bench, was pleased to pass an

order granting an Interim Protection in favour of the Respondents/Petitioners on

10.10.2018.

5. Upto this stage, that is, till the date of grant of Interim Order dated

10th October 2018 or till the stage when the Appellants had filed their objection

on 10.10.2018, touching the merits of the proceedings, they have not raised any

objection as such, principally with regards to the maintainability of the Company

Petition under Section 96, 173, 241 to 244 of the Companies Act,2013 on the

ground that the Company Petition would not be maintainable, since the

Appellants and Respondent are the joint signatories of the Subscription and

Shareholders Agreement of 21st July 2014, which itself contains an Arbitration

Clause as contemplated under Clause 33.2 to be read with Clause 33.3. Hence, as

such, under law, the Appellant/Respondent to the Company Petition couldn't

have raised an objection in relation to the embargo created by Section 8 of the

Arbitration and Conciliation Act of 1996, after entering into the proceedings on

merits.

6. But, yet the Appellants/Respondents to Company Petition at a

belated stage had filed an objection where they have not raised the preliminary

plea about maintainability due to the bar of Arbitration Clause contained under

Clause 33.3 in the Shareholders Agreement dated 21st July 2014, the objection

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 5 of 19 was from the perspective that the Proceedings would be barred under Section 8

of the Arbitration and Conciliation Act, 1996.

7. It is an admitted case, that the Appellants for the first time had raised

an objection in context of the plea contained under Section 8 of the Arbitration

and Conciliation Act, 1996, by filing an objection to that effect on 9th of January

2019, which was numbered as I.A.No.65/2019 wherein they have prayed for, that

the proceedings of the Company Petition, being Company Petition

No.486/241/HDB/2018, should be dropped. The said Application was opposed

by the Respondents/Petitioners by filing an objection to the I.A. No.65/2019 on

the ground that,

(i) in the absence of the Original Shareholder Agreement, being placed

on record, the I.A. No.65/2019, as preferred by the Appellants would

not be maintainable.

(ii) They had further submitted that, the Shareholders Agreement, since

not being a registered document, cannot be derived, as to be the basis

for initiation of the proceedings by virtue of an I.A.No.65/2019, praying

for dropping of the proceedings.

(iii) Further according to the Article of Association of the Appellant

No.1 Company, the proceedings under Section 241 to 244 to be read

with Section 96, Section 173, Section 241, would not be maintainable

before the Learned Adjudicating Authority/ National Company Law

Tribunal, Amravati Bench and

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 6 of 19

(iv) The bar of Section 8 will not come into play for the reason that, the

Appellant/Respondent in the absence of there being any objection

raised at the first given opportunity, in relation to the alleged bar under

Section 8 of the Arbitration Act of 1996, their right to raise an objection

about maintainability of the Company Petition would stand waived of.

8. The Learned Adjudicating Authority/National Company Law

Tribunal, Amravati Bench by the Impugned Judgment of 19th December 2019 had

rejected the Application i.e. I.A.No.65/2019, consequentially rejecting the

Application preferred under Section 8 of the Arbitration and Conciliation Act,

holding thereof that the Proceedings under the Company Law would be

maintainable before the National Company Law Tribunal, Amaravati Bench.

9. It's against this background that after the rejection of the application

by an Order 19th December 2019, the matter has travelled to this Tribunal, by way

of the instant Company Appeal (AT) No.54 of 2020, as preferred by the

Appellants/Respondents, by invoking the provisions contained under Section 421

of the Companies Act 2013. There were various contentions raised by the learned

Counsel for the parties and particularly the argument which has been extended by

the Appellant, while opposing the observations which were made by the Learned

Adjudicating Authority in the Impugned Order of 19th December 2019, on the

ground that, when the parties have entered into an Agreement on 21 st July 2014,

they would be bound by its terms and conditions as contained under Clause 33.2

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 7 of 19 which dealt with the "Dispute Redressal Forum" and the consequential reference,

made to the Arbitrator under Clause 33.3.

10. To deal with the argument as extended by the Learned Counsel for

the Appellant, while putting challenge to the Impugned Order, we feel it

appropriate to deal with, as to what was the purpose and legislative intent of

Section 8 of the Arbitration and Conciliation Act, 1996, which had permitted

raising of a bar in any proceedings, which are drawn before the Court/Tribunal or

any Judicial Platform. The basic intention of Section 8, was that, as soon as the

factum of initiation of a proceeding in a Court or a forum is brought to the

knowledge of the Opposite Party, which is other than the agreed Forum as per the

terms of the Agreement, the Opposite Party i.e. the Appellant herein was

supposed to raise an objection regards the sustainability of the Proceedings,

forthwith by filing of an Application under Section 8 of the Arbitration and

Conciliation Act of 1996, and not after entering into the proceedings before

NCLT on merits, by exchange of pleadings.

11. Apparently, the Appellant/Opposite Party upon being noticed in the

Proceedings of the Company Petition did have an opportunity to raise an

objection about maintainability on 10.10.2018, when they have filed an objection

to the Interim Relief Application, but for the reasons best known to the Appellant,

they have not raised any such objection in context of the provisions contained

under Section 8 of the Arbitration and Conciliation Act 1996, while opposing the

grant of Interim Relief in the Company Petition while raising pleadings on the

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 8 of 19 merits of the Company Petition. The issue which would crop in would be as to

whether at a subsequent stage, when IA No.65/2019 was preferred on 9 th of

January 2019, would at all be maintainable, which runs contrary to the very

intention of provisions contained under Section 8 of the Arbitration and

Conciliation Act of 1996. Section 8 of Arbitration and Conciliation Act as

extracted hereunder:

8. Power to refer parties to arbitration where there is an arbitration agreement. [(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.] (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

[Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that court.] (3) Notwithstanding that an application has been made under sub- section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 9 of 19

12. If the language of Section 8 Sub-Section 1 is taken into

consideration as extracted above, it contemplates that, when a proceeding is

drawn before a "Judicial Authority" where an action is initiated, the person who

is opposing a claim or a relief sought, has to raise an objection under Section 8 of

Arbitration Act at the first available opportunity, and not later than the date of

submission of the first Statement on the Substance of Dispute. The important

expression under Sub Section 1 of Section 8 is "Not later than the date of

submitting his first Statement on the Substance of Dispute". Since in the

instant case, the Appellants/Opposite Parties, has already filed an objection to the

Interim Relief Application, which in its material content was an objection to the

principle claim raised and since the same has been filed on 10.10.2018, the said

cut-off date would be taken as to be the 'first available opportunity' to the

Appellant to raise an objection with regards to Section 8 of the Arbitration and

Conciliation Act, 1996. Having not done so, the application under Section 8

would not be maintainable and the reason being that, Sub-Section 1 of Section 8

itself creates a restriction that no such Application would be maintainable, if it is

applied for at a stage later than the submission of the first expression of objection

to the proceedings before a Judicial Authority. Here in the instant case, since the

application itself i.e. IA/65/2019, was filed on 9th January 2019, that would be

amounting to that the Appellants have chosen to first venture into the proceedings

of the Company Petition on its merits by filing an objection without raising a plea

of Section 8, and this being the case, filing of an application under Section 8 on

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 10 of 19 09th January 2019 almost as an afterthought would be barred by Sub Section 1 of

Section 8 itself of the Act of 1996 itself and the same would not be tenable.

13.The Respondents/ Plaintiffs had specifically taken a plea that, the

application was not sustainable for the reason being that the Appellant/

Respondent, had not produced the "Original Copy of the Agreement dated 21st

July 2014", nor the Appellant has supplied the certified copy of the said

agreement. If the objection filed by the Respondent is taken into consideration,

the said objection was dealt with by the Learned Adjudicating Authority in its

Para 6 of the impugned order observing that the original agreement since was not

filed, and hence the Application IA No.65/2019 deserves rejection.

14.It is not the case either in the Company Petition or even before this

Appellate Tribunal that, the Appellant had at any stage, though having belatedly

filed the Application under Section 8, had ever supported his Application IA

No.65/2019 with the legally acceptable copy of the agreement, which could have

been taken as to be the basis to initiate, the proceedings under the Arbitration Act,

for the purposes of his relief of dropping the proceedings under the Companies

Act. Because in the light of the observation which has been made in para 6 of the

Impugned Order , it is admitted between the parties that, it was only the

"Authenticated Copy of the Agreement dated 21st July 2014 which was filed."

The question which emerges for consideration before us, is as to whether the

Authenticated copy of the agreement as filed by the appellant in support of IA

No.65/2019, could at all be read in parlance to the certified copy of the Arbitration

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 11 of 19 Agreement or the Original of the Arbitration Agreement. Obviously, under law

the certification of a document has to be in accordance with the provisions of

Registration Act to be read with Section 76 of Evidence Act, and particularly in

the context of the provisions contained under Section 17 of the Registration Act,

where certain documents will be inclusive of the present agreement as it dealt

with the Subscription of the Shareholders, which itself is a property under law,

which had to be mandatory required to be registered and if that be so, in that

eventuality when the application under Section 8 of the Act of 1996, was

preferred by the Appellant, it ought to have been accompanied with the certified

copy of the agreement at the stage, when the initial objection of 10th October 2018

was filed by the Appellant/Respondent, in opposition to the Company Petition.

In that view of the matter and for the said reasons, the "authenticated copy"

cannot be treated as to be a "certified copy", which could have been read in

evidence under Section 47 of the Registration Act for the purposes to satisfy the

restrictions imposed by Sub-Section (2) of Section 8 of the Arbitration and

Conciliation Act, 1996. When the Legislature has specifically used the word "the

Original Copy" as an alternative to "the Certified Copy" it meant that the so-

called Arbitration Agreement which has been derived, to oppose the proceedings

of the Company Petition, the same was required to have been filed in original.

That was not done. Consequently, taking that as to be a reason for non-

sustainability of Application IA No.65/2019, the Application stood rejected. If

we critically analyse the provisions contained under Sub Section 2 of Section 8 TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 12 of 19 of the Act, 1996, the Law in its quite specific terms has observed that, no

application under Section 8 is to be "entertained". Meaning thereby, the use of

word "Entertainment" under Sub-Section (2) of Section 8, it casts the

responsibility on the Court itself to ensure whether the Application under Section

8 has been filed in the manner as below: -

(i) After submission of the first Statement on merits, and its stage of filing

(ii) Whether it is with or without a certified copy being filed along with the

application

(iii) Whether the Original Arbitration Agreement being filed on record

No such application under Section 8 of the Act of 1996, was filed before National

Company Law Tribunal, Amravati Bench, to derive an objection with regards to

the maintainability of the proceedings of the Company Petition, under Sections

96, 173, 241 to 244 of the Companies Act. The aforesaid principle literally and

in its legal terms, as to what derivation could be made with regards to the certified

copy in fact, has been prescribed under the National Company Law Tribunal

Rules, where a certified copy would be a copy which has been obtained after

compliance of the provisions contained under Section 76 of the Evidence Act".

Since the same has not been complied with, the application under Section 8 was

held to be not maintainable because it will not be falling to be, a certified copy

under Sub Rule (9) of Rule 2 of the National Company Law Tribunal Rules,

which deals as to what would be the certified copy. The concept as to what would

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 13 of 19 be the "Certified Copy" in relation to the Judicial Proceedings had been a subject

matter of consideration in a Judgment reported in 1997 CrLJ 2815 State of

Madhya Pradesh Vs Bhura Alias Kamal where the learned Single Judge of the

Madhya Pradesh High Court has, though in the context of the Criminal Case,

observed that since the Criminal Proceedings are to be the "Judicial Proceedings"

the analogy of Certified Copy as it has been dealt with in Para 8 can be borrowed

to be applied for the purposes of the instant case and the relevant derivation as

made, as to what would be the 'certified copy' has been dealt in Para 6 and 8 of

the said Judgment which is extracted hereunder:

(6.) Thus, with a view to find out the meaning of word 'copy' first we advert to take assistance from the dictionaries. In Black's Law Dictionary, Fourth Edition, the word 'copy' is defined as:"

The transcript or double of an original writing" and in Judicial Dictionary by Alyear's Eleventh Edition, the word 'copy' is defined as: "A transcript of an original document" There, thus, could be no doubt that the ordinary dictionary meaning of the word "copy" is a reproduction or transcription of an original writing. Learned State counsel submitted that the dictionary cannot be taken aid for finding out the meaning of the word "copy" as dictionaries are not dictators of statutory construction. Krishna Iyer, J. in State Bank of India v. N. S. Money, AIR 1976 SC 1111 [LNIND 1976 SC 13] : ( 1976 Lab IC 769 [LNIND 1976 SC 13]) (Para 8 at page,1114) while propounding the said principle stated that dictionaries are not dictators of statutory-construction where the benignant mood of a law and, more emphatically, the definition clause furnish a different denotation. Here there is no definition clause defining the word "copy" and in such a circumstance reference to dictionary is imperative. Section does not in terms, require a certified copy, it is urged on behalf of the appellant that the word "copy" with reference to a document has only one ordinary meaning, namely, a plain copy and the filing of a plain copy along with petition of appeal is sufficient compliance with the requirements of provisions of Section 382 of the. Code. This argument at its face looks simple, but it is not so. A copy may be (1) a plain copy i.e. an unofficial

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 14 of 19 carbon and photo or separately typed copy issuance, not provided by law (2) an official copy i.e. copy authenticated one issuance provided by law; (3) Certified copy issuance provided by law under procedure provided therefor. If a certified copy of the judgement is annexed to the petition of appeal, there could be no question of objection regarding non-compliance of requirement of Section 382, for a certified copy is nontheless a "copy" and in such a case, question of construction does not arise as to whether the word "copy" used in Section 382 refers to a plain copy or to a certificate copy or covers both categories of copies etc.

(8.) Section 353 of the Code deals with the judgment and requirement is that the judgment in every trial in any criminal Court of original of jurisdiction shall be pronounced in open Court by the presiding officer and in the language of the Court and Sub-Section (2) provide s that where the judgment is delivered under clause (4) of Sub-Section (1), the presiding officer shall cause it to be taken down in shorthand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. Sub-Section (4) provides that where the judgment is pronounced in the manner specified in clause (c) of Sub-Section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost. Here the word "copy" is used after pronouncement of the judgment, the same or the copy thereof to be made available for perusal of the parties or their pleaders. Here it provides only for perusal not for providing and it is so under the authority of law. So the meaning of the word "copy" here is exact copy of the judgment which forms the part of the record and can be made available for perusal only and the same remains in the custody of the persons who is in charge of a record. Section 363(1) of the Code says that when the accused is sentenced to imprisonment, a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost and there is proviso under Sub-Section (2) which says that where a sentence of death is passed or confirmed by the High Court, a certified copy of the judgment shall be immediately given to the accused free of cost whether or not he applied for the same. The Court in such a case shall inform the accused of the period within which, if he wishes to appeal, his appeal should be preferred. Sub-Section (6) also provides that the High Court may, by rules, provide for the grant of copies of any Judgment or order of a criminal Court to any person who is not affected by a judgment or order, on payment, by such person, of such fees and subject to such conditions as the High Court may, by such rules, provide. Here the appeal is not by a stranger. Sub-Section (2) provides for delivery of a certified copy of the judgment on an application being made for the

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 15 of 19 purpose by the accused. So far as the right of the accused is concerned, he is under a disability as his freedom is curtailed. If the accused is sentenced to imprisonment at that time it is necessary to supply him a copy of the judgment immediately on pronouncement of the judgment so to enable him, in case he chooses to do so, for filing the appeal. The position is not so in the case of appeal against the order of acquittal by the State Government as the State Government is under no disability and under the law the State Government is not entitled for a copy of the judgment free of cost. The words used in Sub-Section (1) of Section 363 of the Code are that a copy of the judgment shall, immediately after the pronouncement of the judgment, be given to him free of cost. The word "copy" itself indicates copy means an authenticated copy and in the sense it has got legislative purpose behind it, that is of providing for availment the right to the accused person who is under detention and his right is preserved for filing appeal from prison.

Therefore, if the State Government desires to file an appeal against the order of acquittal under Section 378(3) of the Code, the State will have to procure a copy of the judgment or order i.e. certified as there is no other official mode for providing copy of the judgment and order to it so to enable it to file appeal and thereby to comply with the requirement of Section 382 of the Code. According to Section 74 of the Indian Evidence Act a judgment, being the act or record of the act of a judicial officer, would be included in the category of public documents. Under Section 363 of the Code if a person affected by a judgment desires to have its copy he has the right, on applying for such copy, to be furnished therewith. The old provision under Section 598 of the Old Code provided that the copy of the finding and sentence should be given to the accused "as soon as may be after the delivery of the judgment." A person desirous of such a copy has to apply for it to the public officer having the custody of it and, under Section 76 of the Indian Evidence Act, such public officer is bound to give that person, on demand, a copy of it on payment of the legal fees thereof together with a certificate written at the foot of such copy that it is a true copy of such document, that is to say, to supply to the applicant what is known as a certified copy.

Therefore, whether it is the accused person who applies for a copy under Section 363 of the Code or it is the State which applies for a copy, the copy supplied by the public officer must be a certified copy and as such it is reasonably held that it is certified copy so obtained that must be filed. The copy may be of three kinds: (i) Copy obtained privately. (ii) Authenticated copy. (iii) Certified copy. The copy which is obtained privately under the law has no relevance. Authenticated copy. is a copy which is given to the accused free of cost and it has got value and that, in essence, is the copy duly authenticated and the accused can file appeal on the basis of it. Certified copy is the copy which is made available on application being made to the concerned authority and it

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 16 of 19 required certain formalities and also contains a certificate that when the copy was applied for, when the same was got ready for delivery and when it was actually delivered. It is for the purpose that in case limitation is expiring then the person may have aid of Section 12 of the Limitation Act. It may also be noticed that the Parliament while enacting the Code was having knowledge of the decision of Supreme Court on Section 419and if it had its different intention then the interpretation given by Supreme Court in the case State of U. P. v. C. Tobit (supra), then it could have defined the word "copy" instead of maintaining same phraseology. Taking all the relevant facts into consideration, namely, that a "copy" of the judgment has to be filed along with the petition of the appeal under Section 382 of the Code to be copy of the judgment which the accused gets free of costs under, Section 366 read with Section 76 of the Indian Evidence Act and which copy the State could obtain on an application made by it under, Section 76 of the Indian Evidence Act could be the certified copy. Thus, the copy to be filed with the petition of appeal against acquittal must be the certified copy and not the plain copy which is not obtained by adopting legal procedure."

15.There is another logic and which has been rightly attracted by the

Learned Adjudicating Authority, at the stage of considering the application under

Section 8, by drawing an inference from the Judgment reported in Booz Allen &

Hamilton Inc. v. SBI Home Finance Ltd., & Ors. (2011) 5 SCC 532, where it

has been observed that since the Arbitration Proceedings, being a consented

chosen forum between the consenting parties for the redressal of the dispute, it

will not be taken as to be "Judicial Proceedings" so as to create an embargo for

filing of a Company Petition, as it would be relatively a "Private Forum", which

cannot deceive the objective of the Procedural Law under the Companies Act, to

be read with Insolvency and Bankruptcy Code. It was further observed that in the

said judgment that every Civil, Criminal or Commercial Dispute, which emanates

from a Contractual or a non-Contractual Dispute, involving a Commercial

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 17 of 19 Resolution Process, though it could be resolved under the Arbitration Clause,

under the jurisdiction of which is vested with the Arbitral Tribunal, but it will not

exclusively oust the jurisdiction of the Courts/Tribunal created under Special

Statute for the reason being that, the concept of 'Action in Rem' versus 'Action

in Persona' would be one of the basic element to be considered for the purpose

to oust the Jurisdiction of the Company Petition, which has been drawn by the

Respondent/Petitioner for substantiating Proceedings of the Company Petition

No.486/241/HDB/2018. The said prospective has been considered in recent

Judgment in the matters of NN Global Mercantile (P) Ltd. v Indo Unique

Flame Ltd., as reported in (2023) Volume VII SCC 1 and particularly the

observations which has been made and which would be relevant for the purposes

of the instant Company Appeal is that as contained in Para 138, dealing with the

context as to what would be the 'certified copy'. The same is extracted hereunder:

138. "It is, no doubt, true that under the Scheme, an applicant can produce, either the original or the certified copy. What is a certified copy? A certified copy is to be understood in the light of Section 76 of the Evidence Act, 1872 (hereinafter referred to as "the Evidence Act"

for short). It reads as follows:

"76. Certified copies of public documents.--Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 18 of 19 make use of a seal; and such copies so certified shall be called certified copies.

Explanation.--Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section."

16.In view of what has been observed above, we are of the view that

the Application thus preferred being IA No.65/2019, by the Appellant in the

Company Petition, didn't satisfy the parameters prescribed under Section 8 of the

Act of 1996, and the legislative bar was created in even entertaining the

Application in the absence of satisfying the parameters to sustain the proceedings

because the certified copy or the original copy of the Agreement was not filed.

Therefore no such proceedings could have been even entertained by the National

Company Law Tribunal, Amravati Bench by way of IA No.65/2019 and in these

circumstances, when the Law creates a bar in even entertaining of any such

Application under Section 8 of Act of 1996, the same would not be maintainable.

Thus, the Company Appeal lacks merit and the same is dismissed.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Jatindranath Swain] Member (Technical)

SE/TM

TA (AT) No. 275/2021(Comp App (AT) No.54/2020) Page 19 of 19