Free final order copy sent by Registry not certified copy, can’t be used for filing IBC appeals: NCLAT

The National Company Law Appellate Tribunal (NCLAT) has held that the mandatory free-of-cost copy of a final order sent to litigating parties by the National Company Law Tribunals (NCLTs) cannot be treated as ‘certified’ copies as defined under the NCLAT Rules..Thus, such free copies cannot be used as the basis for filing an appeal before the appellate body..In an order passed on July 9, judicial member Justice Sharad Kumar Sharma of the Chennai bench of the NCLAT laid to rest all doubts on the use of such mandatory free copies for filing of appeals in proceedings under the Insolvency and Bankruptcy Code (IBC).Justice Sharma ruled that the NCLT Rules cannot be read independently, and when it came to the issue of certified order copies, they must be read in consonance with Section 76 of the Indian Evidence Act and the NCLAT Rules, 2016. These two provisions deal with the demand for a true or certified order copy or other public documents, and filing of an appeal before the Tribunal, respectively.“Holding thereof the Free Copy provided under Rule 50 of NCLT Rules, 2016, cannot be treated as to be a Certified Copy referred to under Rule 22(2) of NCLAT Rules, 2016, and the Free Copy will not satisfy to be a Certified Copy, as defined under Section 2(j) of the NCLT Rules, to be read with Section 76 of the Evidence Act. Answered accordingly,” Justice Sharma said..Justice Sharma was appointed as the third member by the NCLAT Delhi to give a final verdict on the issue after a two-member Bench of the NCLAT Chennai delivered a split verdict in May this year, on whether such free order copies can be the basis of an appeal under IBC.While the judicial member Justice M Venugopal held that irrespective of whether or not a party received the free order copy, the requirement imposed upon them under Rule 50 of the NCLAT Rules, 2016, to apply for a certified copy by paying requisite fees, cannot be dispensed with.The technical member Jatindranath Swain, however, went on to say that the certified copy given free of cost had to be read at par with the certified copy to be obtained on demand under Section 76 of the Indian Evidence Act, for the purposes of filing of appeals under IBC..This, despite the fact that on March 15 this year, a three-member bench of the NCLAT Chennai that included both Justice Venugopal and technical member Swain, along with Justice Sharma, had ruled that the 'free of cost' copy of final order sent by the NCLT registry in compliance with NCLT Rules, was not a 'certified copy' of the order for the purpose of filing an appeal..In the present order, Justice Sharma noted that the March 15 order of the full bench had not been disputed or challenged by the parties. It had also not been set aside by the Supreme Court.Yet, in another case, an appeal filed by State Bank of India seeking condonation of delay on the basis of a free copy, a two-member bench had taken a differing view on the same issue that had been laid to rest by the larger bench, Justice Sharma said. Besides, the technical member who had dissented at present had been part of such larger bench and had agreed with the decision at the time, he noted..Besides, the stand taken in the present case by the technical member was erroneous and misplaced, he said.“Even the framers of the Indian Evidence Act, at the time when they had incorporated Section 76, they could not even perceived of the philosophy of a Certified Free Copy, and as such, the portion as extracted above, which has been extracted to be read by the Learned Member (Technical) that the expression of words `so’ used therein, in relation to a Certified Copy, has to be read also, in relation to a Free Certified Copy, would not be acceptable, once, the concept of Free Certified Copy itself was not at all persistent at the time when the Evidence Act itself was framed, providing for a Certified Copy on a demand being made and on payment of Fee,” Justice Sharma said..Senior Advocate PH Arvindh Pandian, briefed by Cyril Amarchand Mangaldas, appeared for SBI.Senior Advocate Arun Kathpalia and Advocates Deepika Murali and Nivea appeared for the respondent, India Power Corporation..[Read judgment]