The court established that free certified copies and those obtained for a fee are treated equally for appeal purposes under the IBC and relevant rules.

ORDER :

1. On a difference between two members of the National Company Law Appellate Tribunal¹ [“NCLAT”] reflected in a split verdict on 1 May 2024, the third Member, by a judgment dated 9 July 2024, agreed with the Judicial Member in dismissing the application for condonation of delay.

2. The facts, insofar as they are relevant for the disposal of the Appeal, fall in a narrow compass.

3. The appellant, State Bank of India, instituted an application under Section 7 of the Insolvency and Bankruptcy Code 2016² [“IBC”] against the respondent. The National Company Law Tribunal³ [“NCLT”] at Hyderabad rejected the petition on the ground of maintainability by an order dated 30 October 2023.

4. The appeal before the NCLAT, Chennai was filed on 2 December 2023. The appellant filed an application for condonation of delay on the ground that the appeal had been lodged with a delay of 3 days beyond the 30 day period prescribed in Section 61(2).

5. A divergence arose between the two members of the NCLAT on 1 May 2024. The Judicial Member held that the certified copy which was filed by the appellant was a “free of cost” copy and hence in the absence of an application for the grant of a certified copy, the delay of three days could not be condoned. The Technical Member, on the other hand, held that no distinction could be made between certified copies obtained through the payment of fee and a free copy and sufficient cause was shown for condoning the delay of three days.

6. The divergence was, thereafter, referred to a third Member of the NCLAT who has ruled that the free copy provided under Rule 50 of the National Company Law Tribunal Rules 2016⁴ [“The NCLT Rules”] cannot be treated as a certified copy which is referred to in Rule 22(2) of the National Company Law Appellate Tribunal Rules 2016.⁵ [“The NCLAT Rules”]

7. The appeal has been consequently dismissed on delay on 9 July 2024.

8. The issue which arises for consideration turns on the interpretation of Rule 50 of the NCLT Rules and Rule 22 of the NCLAT Rules.

9. An appeal to the appellate authority is governed by the provisions of Section 61(2) of the IBC which provides as follows:

“61. (2) Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal:

Provided that the National Company Law Appellate Tribunal may allow an appeal to be filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days.”

10. Rule 50 of the NCLT Rules provides as follows:

“50. Registry to send certified copy - The Registry shall send a certified copy of final order passed to the parties concerned free of cost and the certified copies may be made available with cost as per Schedule of fees, in all other cases.”

11. Rule 22 of the NCLAT Rules is in the following terms:

“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 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 fi