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2022 (8) TMI 321 - AT - Insolvency and BankruptcyInitiation of CIRP - Period of limitation - It is the case of the Appellant that the date of default of Non-Performing Assets (NPA) on 05.07.2014 and the Bank/ R2 has filed petition under Section 7 of the Code on 11.12.2019 - NCLT admitted the application - HELD THAT:- It is not in dispute that the Debt has become NPA on 05.07.2014 and Section 7 application for initiation of ‘Corporate Insolvency Resolution Process’ has been filed on 11.12.2019 by R2/Bank - It is also not in dispute that the bank/ R2 has filed a petition before the Hon’ble High Court of Orissa and the same was transferred to NCLT, Cuttack Bench in terms of Notification dated 07.12.2016 of the Central Government. The Bank/R2 has filed multiple proceedings before the DRT-3 Calcutta and simultaneously persuade for recovery against the CD/ Appellant under Section 138 of the Negotiable Instrument Act, 1881 apart from filing criminal complaint which is barred under Section 18 and 34 of the ‘RDDBFI Act, 1993’. When the OA No. 104 /2016 was filed before the DRT then what was necessity of enforcing criminal complaint and approaching under Negotiable Instruments Act, 1881 - The Appellant was not aware of the winding up petition filed before the ‘Hon’ble Orissa High Court’ on 28.09.2016 and came to know about only when the Adjudicating Authority issued notice to the Appellant. The Bank has already received Rs.1.50 Crore from the builder and Rs. 54,13,999.87 from the CD. The deliberation made by all the parties as one feature common with the loan has been directly disbursed to Builder/R3 and the Bank/R2 as failed to be cautious while releasing the money to the builder without taking NOC from their bankers and has initiated in all these legal proceedings. This case finally reflects that this is a forum shopping being done by a private sector bank which is not healthy. The Code cannot be used a recovery mechanism when the Hon’ble High Court of Orissa has already taken a particular view and DRT has also taken appropriate decision to get the amount realized to the Bank & the Bank/R2 has realized Rs. 1.5 Crore from Builder/R3 and Rs. 54,13,999/- from CD/R1 against disbursal of Rs. 1.34 Crore. CIRP mechanism is not for a debt recovery as Hon’ble Supreme Court has already settled the law on this aspect. Hence, CIRP cannot be used for bringing a Corporate Debtor to liquidation & thereby enriching Private Sector Bank. Corporate Debtor, Emerald Mineral Exim Pvt. Ltd is released from the rigour of the ‘Corporate Insolvency Resolution Process - Appeal allowed.
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