Limitation runs from date of e-filing appeal, not date of re-filing after curing defects: NCLAT

The National Company Law Appellate Tribunal (NCLAT), Delhi recently ruled that for the purpose of determining whether an appeal has been filed within time (limitation), the date of filing of the appeal would be the date on which it is e-filed, even if there are defects at the time of the e-filing [Innovators Cleantech Pvt. Ltd v. Pasari Multi Projects Pvt. Ltd.].A coram of Chairperson, Justice (retired) Ashok Bhushan and Technical Member Barun Mitra reasoned that a larger Bench of the appellate tribunal has already held that re-filling an appeal after curing defects cannot be treated as a “fresh filing.”“When defects are cured and the Appeal is registered, the date of refiling of the Appeal after curing the defects, cannot be treated to be the fresh date of filing of the Appeal for computation of limitation … The date of refiling and date of filing are two different concepts, which are clear from statutory scheme,” the NCLAT said.Reliance was also placed on a 2022 notification issued by the NCLAT which dealt with the limitation period within which cases are to be filed before the appellate tribunal. This notification provided that, “Limitation shall be computed from the date of e-filing.” “The above Order dated 24.12.2022 issued by this Tribunal and as noticed by the Hon’ble Supreme Court in Sanket Kumar Agarwal and Anr. leaves no doubt that computation of limitations has to be done from the date of e-filing of the Appeal and any other interpretation of the Rules and the Orders issued by this Tribunal is not permissible.”.In the same judgment, the NCLAT also held that an appeal cannot be dismissed merely on ground that appellant did not apply for certified copy of order being challenged.The appellate tribunal added that nowadays, litigants often file appeals while relying on web-copies of orders passed by the National Company Law Tribunals (NCLTs) / Adjudicating Authorities.“We have no doubt that the Appeal can be filed without applying a certified copy of the orders, in the facts and situation of a particular case. At present, all orders are uploaded on website of the Adjudicating Authority and this Tribunal and litigants often file the Appeal by relying on uploaded copy on the website. We, thus, are of the view that Appeal filed without applying for a certified copy of the order, cannot be dismissed on this ground that Appellant has not applied for certified copy of the order,” the NCLAT said..The judgment was passed while dismissing two interlocutory applications (IAs) that had opposed the maintainability of an appeal filed before the NCLAT.The applicant who filed the IAs argued that the limitation period within which the appeal should have been filed expired on September 27, 2023 and that the defect-free appeal was filed only on January 16, 2024.The appellant countered that the appeal was e-filed on September 25, 2023, albeit with some defects that were eventually cured.The applicants argued that the September 25 filing cannot be accepted as the date of filing the appeal since it was not accompanied by a vakalatnama, or the challenged order, or any notarised affidavit. Further the said appeal was not in prescribed format, the applicant added. Rather, the September 25 filing was only a “bunch of papers” which cannot be viewed as the date of filing the appeal for the purpose of limitation, the applicant said. The applicant also cited a similar view expressed by the Delhi High Court in the case of IRCON International Ltd. vs. Reacon Engineers (India) (P) Ltd. The NCLAT, however, disagreed after noting that the High Court's judgment was based on a rule that was applicable specifically to the High Court."It is relevant to notice that judgment of the Delhi High Court ... were delivered in context of specific rule applicable in the Delhi High Court namely – Rule 5 of Delhi High Court Rules effective from w.e.f 01.12.2018," the NCLAT observed.The appellate tribunal proceeded to dismiss the IAs and post the main appeal for hearing on August 22..Advocates Anuj Bhandari and Gaurav Jain represented the appellant.Senior Advocate Sanjeev Sen and advocates Ashok Kumar Jain, Amit Kasera, Anjali, Singh and Pragyan Mishra appeared for the respondent/ applicant..A similar ruling was passed by the appellate tribunal on July 2 as well, when it held that for the purpose of determining when a moratorium starts, the effective date of an insolvency application against personal guarantors is the date on which it is filed.In this regard, the NCLAT disagreed with the Kerala High Court's ruling that a moratorium would commence only after the application is defect-free.