Sanket Kumar Agarwal & Anr. vs Apg Logistics Private Limited

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 The order dated 21 October 2022 was subsequently withdrawn on 24 December 2022.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 efiling 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 of the NCLAT. The appeal was instituted within the outer limit of

45 days. [Paras 24, 25][1172-H; 1173-A, C-D]

1.4 In the instant case, the application for a certified copy was sent from Delhi to Chennai on 2.09.2022, which was received on 5.09.2022, within the period of limitation of 30 days specified in Section 61(2). This aspect lies in contrast to the facts as they obtained before this Court in the judgment in V Nagarajan’s case where even the application for obtaining the certified copy was not filed. In the instant case, the appellant exercised due diligence and applied for a certified copy upon pronouncement of the order in terms of Rule 22(2) of the NLCAT Rules 2016. The certified copy was provided to the appellant 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 under Section 61(2) of the IBC. Thus, the NCLAT was in error in dismissing the appeal on the ground of limitation. The explanation which was advanced by the appellant for condoning the period of 5 days (beyond the period of 30 days stipulated for the filing of an appeal) was, sufficient and the delay should have been condoned within the four corners of the statute. The order of the NCLAT is set aside. [Paras 28, 29, 32][1175-C-G; 1176-F]

2. The Court cannot but fail to notice the flip-flops on the part of the NCLAT in providing administrative guidance on whether limitation would commence from the date of e-filing or from the presentation of the appeal at the filing counter. With technological advances, the country’s judiciary and tribunals must move towards e-filing. This process has already commenced and is irreversible. The Union Government must have a fresh look at the rules to encourage e-filing across tribunals. Perhaps one way forward would be to constitute a Working Group to make a comprehensive assessment of the position across tribunals and suggest regulatory changes. Moreover, 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. A lawyer or litigant who is compelled to file physical copies in addition to e-filed documents will have no cogent reason to resort to e-filing. This duplication of effort is time consuming. It adds to expense. It leaves behind LTD.

a carbon footprint which is difficult to efface. The judicial process has traditionally been guzzling paper. This model is not environmentally sustainable. If some judges are uncomfortable with e-files, the answer is to provide training to them and not to continue with old and outmoded ways of working. The judiciary has to modernize and adapt to technology. The tribunals can be no exception. This can no longer be a matter of choice. The IBC is a significant prong in economic reforms. It has radically reshaped the law relating to insolvency and bankruptcy. The manner in which the law is administered will have to keep pace with technology. Both the Union government in its rule making capacity and the administrative heads of tribunals must ensure a seamless transition to working in the electronic mode. [Para 30][1175-G-H; 1176-A-D]

V Nagarajan v. SKS Ispat and Power Limited & Ors (2022) 2 SCC 244 – distinguished.