State Bank Of India vs Solo Metals Pvt Ltd Now Damani Castings ...

Hertz Technologies Pvt. Ltd. & Ors. ....Appellants Vs.

Netizen Engineering Pvt. Ltd. Erstwhile Reliance ...Respondent Infocom Engineering Ltd. For Appellants: Mr. Gautam Singh, Mr. Raghu Vamsy Dasika, Advocates. For Respondent: Mr. Kumar Anurag Singh, Mr. Zain A Khan, Mr. Shevetank Singh, Ms. Aastha Shrestha, Advocates.

WITH

I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022

In the matter of:

State Bank of India ....Appellant Vs.

Solo Metals Pvt. Ltd. ...Respondent For Appellant: Mr. Siddharth Sangal, Advocate For Respondent: ORDER

(13 th October, 2022)

Ashok Bhushan, J.

1. We have heard Learned Counsel for the parties on the question of

Condonation of Delay in filing these two Appeals. 2

2. Company Appeal (AT) (Ins.) No. 984 of 2022 has been filed against the

order dated 18.01.2022 passed by the Adjudicating Authority (National

Company Law Tribunal), Mumbai Bench, Court III rejecting Section 9

Application filed by the Appellant. The Appeal was e-filed in this Tribunal on

30.05.2022 and was presented physically on 21.07.2022. After curing the

defects, it was represented on 04.08.2022. I.A. No. 2827 of 2022 has been

filed for condonation of 1-day delay in filing the Appeal and 53 days' delay in

filing the physical copy of the Appeal.

3. Company Appeal (AT) (Ins.) No. 1031 of 2022 has been filed by the State

Bank of India challenging the order dated 28.02.2022 passed by the

Adjudicating Authority (National Company Law Tribunal), New Delhi, Court-

VI rejecting the I.A 601/2021. The Appeal was e-filed on 25.05.2022 and

physical copy of the Appeal was filed on 25.07.2022.

4. Learned Counsel for the Appellant in support of the delay condonation

Application submits that this Tribunal having permitted e-filing of the Appeals

by its order dated 03.01.2021 the limitation for filing the Appeal is to be

computed from the date of e-filing of the Appeal. Learned Counsel for the

Appellant has also placed reliance on 'Rules for On-Line Electronic Filing'

framed by High Court of Delhi dated 22.02.2022 where High Court of Delhi

has provided that computation of time shall be made from the date of e-filing.

It is submitted that the Hon'ble Supreme Court by its order passed in Suo I.A. No.2827 of 2022 IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022 3

Moto Writ Petition (C) No. 3 of 2020 has extended the period of limitation for

a period of 90 days w.e.f. 28.02.2022 and in event it is held that period shall

not be computed from the date of e-filing of the Appeal, litigant shall be

deprived of the benefit extended by the Hon'ble Supreme Court.

5. Learned Counsel for the Respondents refuting the submissions of the

Counsel for the Appellant submits that the Appeal in the Appellate Tribunal

has to be presented in accordance with the National Company Law Appellate

Tribunal Rules, 2016 and Rule 22 provided for 'presentation of appeal'. Appeal

has to be presented in this Tribunal at the filing counter and non-compliance

of which may constitute a valid ground to refuse to entertain the Appeal. E-

filing the Appeal cannot be said to be presentation of the Appeal under Section

22, hence, the period of computation of the limitation has to be reckoned from

the date of physical filing of the Appeal and in both the cases physical filing

of the Appeal is beyond 45 days and the Appeals deserve to be dismissed on

the ground of delay. Learned Counsel for the Respondent has referred to and

relied on the Rules framed by 'Income Tax Appellate Tribunal Rules, 1963'

where it is provided that even though e-filing remains mandatory but the

period for filing Appeal is to be computed from the date of presentation of

Appeal. It is submitted that e-filing which is permitted by this Tribunal by

order dated 03.01.2021 has to be in accordance with Rule 22 and

presentation of physical copy is relevant for computation of period of

I.A. No.2827 of 2022 IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022 4

limitation and litigants are not entitled to compute the time from the date of

e-filing.

6. Shri Kumar Anurag Singh, Learned Counsel appearing for the

Respondent in Company Appeal (AT) (Ins.) No. 984 of 2022 further submits

that in view of the order passed by the Hon'ble Supreme Court in Suo Moto

Writ Petition (C) No. 3 of 2020 dated 10.01.2022, the present is covered by

direction at 5(IV), hence, after 28.02.2022, Appellant was entitled to file the

Appeal within 45 days and Appeal filed beyond 45 days are not entitled for

the benefit of the order of the Hon'ble Supreme Court dated 10.01.2022.

7. We have considered the submissions of the Counsel for the parties and

perused the record.

8. Filing of the Appeals in this Tribunal is governed by Statutory Rules

namely-- 'National Company Law Appellate Tribunal Rules, 2016' ("NCLAT

Rules, 2016). Rule 22 provides for 'presentation of appeal' which is to the

following effect:-

"22. Presentation of appeal.- (1) Every appeal shall be presented in Form NCLAT-1 in triplicate by the appellant or petitioner or applicant or respondent, as the case may be, in person or by his duly authorised representative duly appointed in this behalf in the prescribed form with stipulated fee at the filing counter

I.A. No.2827 of 2022 IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022 5

and non-compliance of this may constitute a valid ground to refuse to entertain the same. (2) Every appeal shall be accompanied by a certified copy of the impugned order.

(3) All documents filed in the Appellate Tribunal shall be accompanied by an index in triplicate containing their details and the amount of fee paid thereon. (4) Sufficient number of copies of the appeal or petition or application shall also be filed for service on the opposite party as prescribed.

(5) In the pending matters, all other applications shall be presented after serving copies thereof in advance on the opposite side or his advocate or authorised representative.

(6) The processing fee prescribed by the rules, with required number of envelopes of sufficient size and notice forms as prescribed shall be filled along with memorandum of appeal."

9. We may also notice Rule 103 of the NCLAT Rules, 2016 which provides

for 'filing through electronic media'. Rule 103 is as follows:-

"103. Filing through electronic media.- The Appellate Tribunal may allow filing of appeal or proceedings through electronic mode such as online filing and provide for rectification of defects by e-mail or internet and in such filing, these rules shall be adopted as nearly as possible on and form a date to be notified separately and the Central Government may issue instructions in this behalf from time to time."

I.A. No.2827 of 2022 IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022 6

10. NCLAT has issued a Circular dated 03.01.2021 issuing a 'Revised

Standard Operating Procedure' and also notifying that NCLAT e-filing facility

is available for filing of Appeal. It is useful to extract the Circular dated

03.01.2021:

"Dated: 03.01.2021

National Company Law Appellate Tribunal

Revised Standard Operating Procedure for Ld. Advocate/ Authorised Representative/Party-in- Person for hearing/Mentioning the matter through virtual mode.

As directed, the following is the revised Standard Operating Procedure for hearing of cases through virtual mode (Cisco Webex Meeting Platform) using the e-filing portal (https://efiling.nclat.gov.in) from 04.01.2021.

NCLAT e-filing facility is now available for filing of Appeal/ Interlocutory Application/ Reply/ Rejoinder etc. Therefore, all concerned are requested to avail the same through NCLAT e-filing portal (https://efiling.nclat.gov.in) w.e.f. 04.01.2021. The URL for the same is available on NCLAT website (www.nclat.nic.in),

It may be noted that it is mandatory that Ld. Advocates/ Authorised Representatives/ Parties-in- Person shall file the Appeal/lnterlocutory Application/Reply/ Rejoinder etc. in hard copy also as

I.A. No.2827 of 2022 IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022 7

per the procedure prescribed in NCLAT Rules, 2016 along with the e-filing receipt. The online filing & hard copies must match with proper pagination. The Court Fee shall be paid through Bharat Kosh (https://bharatkosh.gov.in ) and the payment receipt should be attached."

11. The above Circular indicate that apart from e-filing of the Appeal, it is

also mandatory to file physical copy of the Appeal.

12. We may notice the Rules framed by High Court of Delhi dated

22.02.2022. High Court of Delhi issued 'Rules For On-Line Electronic Filing'

under Section 7 of the Delhi High Court Act 1966 and Article 227 of the

Constitution of India. Rule 14 provides for 'computation of time'. Rule 14.1 is

as follows:-

"14. Computation of Time 14.1. Wherever limitation/time limits apply, it will be the responsibility of the party concerned to ensure that the filing is carried out well before the cut-off date and time. The date of e-filing will be taken as that date when the Action is electronically received in the Registry within the prescribed time on any working day. For computing the time at which e-filing is made, Indian Standard Time (IST) will apply."

I.A. No.2827 of 2022 IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022 8

13. Learned Counsel for the Respondents has also relied on the Rules

framed by Orissa High Court under the heading 'Orissa High Court Guidelines

for E-filing'. Guideline 15 is as follows:-

"15. COMPUTATION OF TIME.-

(a) Limitation shall be computed from the date of e-filing if hard copy is filed within 7 days but if hard copy is not filed within 7 days, the limitation will be computed from the date of filing of hard copy.

However, the competent authority is at liberty to notify to extend the period of filing hard copy in case of any unforeseen exigency."

14. Learned Counsel for the Respondents has also referred to the order

issued by the Income Tax Appellate Tribunal under the heading 'Practice Note

for E-filing in ITAT'. Clause 5 is as follows:-

"5. It is hereby clarified that till it is notified otherwise by Hon'ble President, ITAT, the presentation of Appeals, Cross Objections, Stay Applications and Miscellaneous Applications in physical / paper form in terms of Income Tax (Appellate Tribunal) Rules, 1963 and other respective enactments continue to remain mandatory even after e-Filing. Therefore, the date of presentation of Appeals, etc., physically in terms of Rule 6 & 7 of the Income Tax (Appellate Tribunal) Rules, 1963 or the I.A. No.2827 of 2022 IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022 9

respective enactments shall continue to be reckoned as the date of presentation for all intents and purposes. After e-Filing of an Appeal, Cross Objection, Stay Application or Miscellaneous Application, the acknowledgement of e-Filing and Memorandum of Appeal or Memorandum of Cross Objection or Stay Application or Miscellaneous Application, as the case may be, along with all the prescribed enclosures shall be presented before the Tribunal in the manner and time prescribed in the said rules or other enactments, as the case may be."

15. When we look into the 'Rules framed by the High Court of Delhi',

'Guidelines issued by the Orissa High Court' as well as 'Practice Note for E-

filing in ITAT', there is clear stipulation in the Rules as to from which date

limitation is to be computed. Delhi High Court mentions that date of e-filing

the limitation shall be computed whereas Guidelines of the Orissa High Court

provide that the limitation shall be computed from the date of e-filing if hard

copy is filed within 7 days but if hard copy is not filed within 7 days, limitation

shall be computed from the date of hard copy whereas ITAT 'Practice Note for

E-filing' indicate that period for limitation shall be computed from the date of

presentation of Appeal.

16. When we look into the Circular issued by this Tribunal dated

03.01.2021 as extracted above, it is clear that there is no indication in the

Circular as to what shall be the date for computing the limitation for filing an I.A. No.2827 of 2022 IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022 10

Appeal. Rule 103 of the NCLAT Rules, 2016 permits the Appellate Tribunal to

allow filing of appeal or proceedings through electronic mode such as online

filing, the Rules shall be adopted as nearly as possible on and from a date to

be notified separately.

17. Circular issued by this Tribunal dated 03.01.2021 and other Circulars

issued subsequently namely-- Circular dated 15.07.2022 and 18.07.2022 do

not give any indication as to how the limitation shall be computed for filing

the Appeal, whether limitation is to be computed from the date of e-filing or

from the date physical copy is filed. We, in the facts of the present case,

especially when Circular issued by the Tribunal does not give any indication

as to from which date the limitation is to be computed, the ends of justice be

served in giving benefit to the Appellants to compute the limitation from the

date of e-filing. When the limitation is computed for Company Appeal (AT)

(Ins.) No. 1031 of 2022 which was e-filed on 25.05.2022 is well within the

time as allowed by the Hon'ble Supreme Court by order passed in Suo Moto

Writ Petition (C) No. 3 of 2020. Company Appeal (AT) (Ins.) No. 984 which was

e-filed on 30.05.2022 being delayed by only one day. Delay of one day is

condoned.

18. We need to consider one more submission raised by Learned Counsel

for the Respondents- Shri Kumar Anurag Singh. It is submitted that in view

of the order of the Hon'ble Supreme Court dated 10.01.2022, the Appellants

I.A. No.2827 of 2022 IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022 11

are entitled to compute limitation as per directions in para 5(IV) and para 5(III)

is not applicable to them. Para 5 of the directions of the Hon'ble Supreme

Court is as follows:-

"5. Taking into consideration the arguments advanced by learned counsel and the impact of the surge of the virus on public health and adversities faced by litigants in the prevailing conditions, we deem it appropriate to dispose of the M.A. No. 21 of 2022 with the following directions:

I. The order dated 23.03.2020 is restored and in continuation of the subsequent orders dated 08.03.2021, 27.04.2021 and 23.09.2021, it is directed that the period from 15.03.2020 till 28.02.2022 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings.

II. Consequently, the balance period of limitation remaining as on 03.10.2021, if any, shall become available with effect from 01.03.2022. III. In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining, with effect from 01.03.2022 is greater than 90 days, that longer period shall apply.

IV. It is further clarified that the period from 15.03.2020 till 28.02.2022 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12Aof the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer I.A. No.2827 of 2022 IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022 12

limits (within which the court or tribunal can condone delay) and termination of proceedings."

19. By direction issued in para 5(III), the Hon'ble Supreme Court has

directed that period of limitation expired between 15.03.2020 till 28.02.2022,

all persons shall have limitation period of 90 days w.e.f. 01.03.2022. Direction

in para (IV) is a clarificatory which states that period from 15.03.2020 till

28.02.2022 shall also stand excluded in computing the periods prescribed

under Sections 23(4) and 29A of the Arbitration and Conciliation Act, 1996,

Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of

Section 138 of the Negotiable Instruments Act, 1881 and any other laws,

which prescribe period(s) of limitation for instituting proceedings, outer limits

within which the court or Tribunal can condone delay. The direction in Para

5(IV) is only clarificatory and in no manner restrict the benefit which has been

extended in Para 5(III). The Appellants are clearly entitled to the benefit of

limitation as provided in Direction 5(III) under which w.e.f. 01.03.2022, they

are entitled to file Appeal within 90 days. 90 days' period came to an end on

29.05.2022.

20. We, thus, do not find any substance in the submission of the Counsel

for the Respondents that the Appellants are not entitled for the benefit as

provided in Para 5(III).

I.A. No.2827 of 2022

IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022 13

21. In result, Company Appeal (AT) (Ins.) No. 1031 of 2022 is held within

time and one-day delay in Company Appeal (AT) (Ins.) No. 984 of 2022 is

condoned. Both the Delay Condonation Applications are disposed of

accordingly.

22. Before we close, noticing the fact that Circulars issued by this Tribunal

are not clear with regard to date from which limitation is to be computed, let

Registry place this order before the Hon'ble Chairperson on the Administrative

Side to consider issuing any clarification and modification of the Circulars

issued by this Tribunal with respect to e-filing, if found necessary.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Barun Mitra] Member (Technical)

New Delhi Anjali

I.A. No.2827 of 2022 IN Comp. App. (AT) (Ins.) No. 984 of 2022 WITH I.A. No. 2984 of 2022 IN Comp. App. (AT) (Ins) No. 1031 of 2022