SANKET KUMAR AGARWAL & ANR versus APG LOGISTICS PRIVATE LIMITED

Citation: [2023] 5 S.C.R. 1160 · Decided: 01-05-2023 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

Judgment (excerpt)

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[2023] 5 S.C.R.
   [2023] 5 S.C.R. 1160
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SANKET KUMAR AGARWAL & ANR
v.
APG LOGISTICS PRIVATE LIMITED
(Civil Appeal No. 748 of 2023)
MAY 01, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI
AND J B PARDIWALA, J.]
Insolvency and Bankruptcy Code 2016 : ss. 61, 62 , 238A –
National Company Law Appellate Tribunal Rules 2016 – rr. 3, 22
,103 , 104 – Limitation Act, 1963 – s. 12(1) – Limitation period for
filing appeal u/s. 61(2) against an order of the NCLT – On facts,
dismissal of application u/s. 7 by NCLT on 26.08.2022 – Appellant
then filed application for obtaining certified copy of the order of
NCLT which was uploaded on website and provided to the appellant
on 15.09.2022 – e-filing of appeal before NCLAT on 10.10.2022
along with the application for condonation of delay of five days –
Physical copy of appeal filed on 31.10.2022 – NCLAT dismissed
the appeal on the ground of limitation holding that the appeal was
lodged through the e-portal on 10.10.2022, which was the 46th
day after the order of the NCLT – On appeal, held: Date of order of
pronouncement and the time taken to provide certified copy to be
excluded for computing limiation for filing of appeal u/s. 61(2) –
Thus, the date on which the order was pronounced by the NCLT,
26.08.2022 would have to be excluded from the computation of
limitation – Between 26.08.2022, when the order was pronounced
by the NCLT, and 10.10.2022, when the appeal was e-filed, a period
of 45 days elapsed after excluding the date on which the order was
pronounced – NCLAT erroneously held that the appeal was lodged
on the 46th day whereas correctly computed, the appeal was lodged
on the 45th day – Appellant exercised due diligence and applied
for a certified copy upon pronouncement of the order which was
provided on 15.09.2022 – Hence, the period of 10 days between
5.09.2022 and 15.09.2022 taken by the court to provide a certified
copy of the order ought to be excluded when determining the period
of limitation u/s. 61(2) – Thus, the NCLAT erred in dismissing the
appeal on the ground of limitation.
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Information Technology: e-filing across tribunals – NCLAT
making physical filing of appeals mandatory – Held: It is utterly
incomprehensible why NCLAT should insist on physical filing in
addition to e-filing – This unnecessarily burdens litigants and the
Bar and is a disincentive for e-filing – This is duplication of effort,
its time consuming and adding to expense – Judiciary has to
modernize and adapt to technology – Judges uncomfortable with
e-files, need to be trained – Union government to ensure a seamless
transition to working in the electronic mode.
Allowing the appeal, the Court
HELD: 1.1 In the instant case, admittedly, the appeal was
e-filed on 10 October 2022 and even a physical copy was lodged
on 31 October 2022 prior to the date on which the order of the
Registrar dated 21 October 2022 was to come into effect. The
order dated 21 October 2022 was subsequently withdrawn on 24
December 2022. The order dated 24 December 2022 now clarifies
that limitation would be computed with effect from the date of e-
filing but a physical copy would have to be filed within seven days
of e-filing. [Para 22][1172-C-D]
1.2 In the instant case, the order was pronounced by the
NCLT on 26 August 2022. Rule 3 of the NCLAT Rules 2016
stipulates that the date from which the period of limitation has to
be reckoned (i.e., the date of the pronouncement of the order)
would have to be excluded. Hence, the date on which the order
was pronounced by the NCLT, namely 26 August 2022 would have
to be excluded from the computation of limitation. This is in line
with Section 12(1) of the Limitation Act 1963. The provisions of
the Limitation Act 1963 are made applicable, inter alia, to appeals
before the NCLAT by virtue of Section 238A of the IBC. [Para
23][1172-E-F]
1.3 Between 26 August 2022, when the order was
pronounced by the NCLT, and 10 October 2022, when the appeal
was e-filed, a period of 45 days elapsed after excluding the date
on which the order was pronounced. The NCLAT erroneously
proceeded on the basis that the appeal was lodged on the 46th
day whereas correctly computed, the appeal was lodged on the
45th day. The power of condoning a delay of up to 15 days beyond
the original period of 30 days lies within the discretionary power
SANKET KUMAR AGARWAL & ANR v. APG LOGISTICS PVT.
LTD.
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SUPREME COURT REPORTS
[2023] 5 S.C.R.
of the NCL

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