Background: The Certified Copy Conundrum

Rule 50 of the National Company Law Tribunal, Rules (“NCLT Rules”) mandates that a certified copy of the final order passed by the National Company Law Tribunal (“NCLT”) must be issued to the concerned parties free of cost. However, the National Company Law Appellate Tribunal Rules, 2016 (“NCLAT Rules”), under Rule 22(2), require that appeal filed before the National Company Law Appellate Tribunal (“NCLAT”) be accompanied by a “certified copy” of the impugned order passed by the National Company Law Tribunal (“NCLT”). The term “certified copy” has been subject to differing interpretations, especially when read alongside Section 76 of the Indian Evidence Act, 1872, which outlines the procedural and evidentiary standards for documents issued by public officers.

A key point of deliberation (hitherto divergent) that emerged before the Hon’ble Supreme Court of India in the matter titled State Bank of India vs. India Power Corporation Limited, Civil Appeal No. 10424 of 2024 was whether a free copy issued by the Registry under Rule 50 of NCLT Rules qualifies as a “certified copy” for satisfying filing requirements as prescribed under Rule 22(2) of the NCLAT Rules.

Divergent Views Within the NCLAT

The conflict arose in the judgement of State Bank of India v. India Power Corporation Limited, Company Appeal (AT) (CH) No. 53 of 2024 wherein a two-member Bench of the Hon’ble NCLAT gave dissenting opinion on the issue. The Learned Judicial Member held that the free copy does not qualify as a certified copy under Rule 22(2) of the NCLAT Rules because it is neither obtained upon application nor issued upon the payment of fee as being one of the necessary elements under Section 76 of the Indian Evidence Act, 1872.

The Learned Technical Member dissented, emphasizing that a copy issued by the registry under Rule 50 of the NCLT Rules is indeed a certified document issued by the NCLT’s Registry and should not be treated differently simply because it is provided free of charge.

The matter was referred to a third member of the Hon’ble NCLAT, who vide Judgement dated July 9, 2024, sided with decision of the Learned Judicial Member, reinforcing the precedent laid down in Munagala Roja Harsha Vardhini v. Vardhansmart Private Limited, Company Appeal (AT) (CH) (Ins) No. 23 of 2024 which stated as follows:

“32. A mere running of the ‘eye over the rule 50 of the National Company Law Tribunal Rules, 2016 clearly points out that the ‘Application’ of the ‘Petitioner/Appellant’ to comply with a certified copy by paying the ‘schedule of fees’ ‘cannot be dispensed with’ and at best, the sending of the ‘certified copy’ of ‘final order’ by the authorities concerned, ‘Free of Cost’, is an obligation caused upon the ‘Office of the Registry’ of the ‘National Company Law Tribunal’, as per National Company Law Tribunal Rules.”

This position effectively required parties to make a formal application and pay the prescribed fees (as provided under Schedule of Fees of NCLT Rules) to obtain a valid certified copy for the purposes of filing an appeal under Section 61 of the Insolvency and Bankruptcy Code, 2016 (“IBC”) even when one was already issued under Rule 50 of the NCLT Rules.

Supreme Court’s Ruling: Functional Equivalence Affirmed

The Hon’ble Supreme Court in an appeal against the Order of Hon’ble NCLAT, setting aside the interpretation given by the Hon’ble NCLAT and vide Order dated September 27, 2024, held that there is no distinction between a certified copy made available free of cost and the certified copy which is made available by payment of costs for the purposes of Rule 50 of the NCLT Rules. Rule 50 of the NCLT Rules prescribes that the Registry shall send a certified copy of the final order free of cost and certified copies may be made available on payment of costs in terms of the Schedule of Fees in all other cases. 

Both the certified copy which is made available free of cost as well as the certified copy which is made available on the payment of costs are to be treated as certified copies for the purpose of Rule 50 of the NCLT Rules and to be treated as certified copies for the purposes of Rule 22(2) of NCLAT Rules. Further, Entry 31 in the Schedule of Fees of the NCLT Rules stipulates that the fee for obtaining certified copies of orders passed to parties other than the concerned parties under Rule 50 shall be Rupees Five per page. The stipulation provided in Entry 31 itself excludes “the concerned parties under Rule 50”.

Distinguishing V. Nagarajan vs. SKS Ispat and Power Limited & Ors., (2022) 2 SCC 244

The Hon’ble Supreme Court also addressed the interpretation of its earlier ruling in V. Nagarajan v. SKS Ispat and Power Limited & Ors., (2022) 2 SCC 244, where it has been held that limitation begins from the date the order is made available and it is not open for a person aggrieved by an Order under the IBC to seek shelter under the trigger of receipt of a free certified copy under Section 420(3) of the Companies Act, 2013 read with Rule 50 of NCLT Rules for the purposes of limitation to start running. Further it was noted that Rule 22(2) of the NCLAT Rules mandates the certified copy being annexed to an appeal and the said requirement continues to be binding on the litigants under the IBC. While it is true that the tribunals may choose to exempt parties from compliance with this procedural requirement in the interest of substantial justice, as has been re-iterated in Rule 14 of the NCLAT Rules, the discretionary waiver does not act as an automatic exception where litigants make no efforts to pursue a timely resolution of their grievance.

However, in the present case, the appellant/State Bank of India had applied for and received the free certified copy, and the delay in filing was within the statutorily condonable period of 15 days under Section 61(2) of the IBC.

Key Implications for IBC Litigation

This judgment has far-reaching procedural and practical implications:

Reduced Procedural Friction for Appeal: Litigants may now rely on free certified copies issued under Rule 50 of the NCLT Rules without fear of their appeals being dismissed as defective. This simplifies the appellate process and reduces redundant applications and costs.

No Need for Parallel Certified Copy Request: There is now no requirement to apply for a second certified copy (with payment) merely to satisfy the requirement under Rule 22(2) of the NCLAT Rules, provided a certified copy has already been issued by the Registry under Rule 50 of the NCLT Rules.

Greater Harmonization Between Tribunal Rules: The Court’s purposive interpretation has promoted harmony between the NCLT Rules and NCLAT Rules by giving a strict interpretation to the procedure prescribed under the rules.

Precedential Value for Other Tribunal Frameworks: This ruling may guide similar interpretive issues in other tribunals where parallel “free copy” and “certified copy” provisions exist, reinforcing the principle of functional equivalence over procedural duplication.