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2020 (3) TMI 1105

..... orate Debtor’/Respondent has neither challenged the decree as mentioned earlier nor filed any review till the date of the filing of the petition under Section 7 of the I & B Code. It is also clear that the Defendant No.1 to 5 in the said suit were jointly and severally liable to discharge their obligations of the decree above leaving it to the sole discretion of the Plaintiff/Appellant to recover the said amount from any of the said Defendants. Time Limitation - HELD THAT:- The ‘Corporate Debtor’/Respondent made a false statement before the Adjudicating Authority, and the Adjudicating Authority had no reason to disbelieve such a statement. The Adjudicating Authority had failed to appreciate that the ‘Corporate Debtor’/Respondent had mischievously not placed any record about the alleged Review Application. In the circumstances, the impugned order dated 05th July 2019 regarding the rejection of the Application filed under Section 7 of the I & B Code deserves to be rejected. Since all the ingredients of Section 7 of the, I & B Code 2016 are satisfied and the Application for initiation of the corporate insolvency resolution process is complete, .....

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..... ion of the decree, was awarded in favour of the Appellant and against M/s BT & FC Private Limited (Principal Borrower), Mr M.V. Muralidhar, Mrs Padma Muralidhar, Mrs Soumya Muralidhar and the Respondent herein (Defendant No.1 to 5 in the said suit). In consequence to it, a decree dated 22nd May 2015 and 06th August 2015 was drawn and passed by the Hon ble High Court of Delhi, which was filed before the Adjudicating Authority/ NCLT, Bangalore by the Appellant along with Petition/Application bearing C.P. (IB) No. 135/IB/2018 filed under Section 7 of the I & B Code. That in response to the petition above, the Respondent herein, committed perjury by making a misleading averment in their Objections/ Reply dated 03rd April 2019, inter-alia contending that they had filed an application seeking review of the judgment and decree dated 22nd May 2015 and 06th August 2015 respectively, and the same was pending before the Hon ble High Court of Delhi. The Appellant contends that no such purported and alleged application for review was placed on record by the Respondent. That besides the aforesaid misleading averment, the Respondent placed no document or any evidence or record before the .....

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..... in three years from the date of passing of the final decree dated 06th August 2015. When a petition is filed within the statutory period of limitation, then no adverse inference can be drawn based on not taking action at the earliest opportunity after obtaining the decree. The Adjudicating Authority has noted in its order that the contention of the Petitioner that the judgment in question has become final so as so for the Corporate Debtor is concerned is also not incorrect as the judgment is under review . The above finding of the Adjudicating Authority is assailed by the Appellant, who submits that the Corporate Debtor misled the Adjudicating Authority that the Review Application was pending against the judgment and decree passed by the Hon ble High Court, which is the very basis of finding, on the application for initiation of Corporate Insolvency Resolution Process (CIRP). The Learned Counsel for the Appellant contends that upon inspection of the Court record of the suit bearing No. CS (OS) No.1030/2012 by the counsel of the Appellant on 19th August 2019, to the shock and surprise, it was learnt that no review application, as claimed by the Respondent in its reply, had been file .....

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..... seeking review of the order in question. It is pertinent to mention that Corporate Debtor in its reply had taken the plea that the judgment and decree are not final and Review Application is pending before the Hon ble High Court of Delhi. Based on the statement made in reply by the Corporate Debtor the Adjudicating Authority has presumed pendency of Review Application, whereas no document was placed on record to show the pendency of the Review Application. The burden of proof was also on the Corporate Debtor , who had contended before the Adjudicating Authority that decree is not final and Review Application is yet pending, but Adjudicating Authority has presumed the pendency of the Review Application for not filing of any document by the Petitioner regarding Review Application. The above finding of the Adjudicating Authority is incorrect because the burden of proof to show that the review application is pending was on the Corporate Debtor . The Adjudicating Authority has raised the questions on not taking any steps for filing execution application, even though Review Application is pending. Adjudicating Authority has erroneously rejected the application based on pending review ap .....

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..... onsequently, a decree sheet dated 22nd May 2015 and 06th August 2015 were drawn wherein a decree of payment of ₹ 8,04,43,637 (Rupees eight crore four lakh forty-three thousand six hundred thirty-seven only) along with past, present and future pendente-lite interest at 21% per annum was passed in favour of the Appellant. The Corporate Debtor /Respondent has neither challenged the decree as mentioned earlier nor filed any review till the date of the filing of the petition under Section 7 of the I & B Code. It is also clear that the Defendant No.1 to 5 in the said suit were jointly and severally liable to discharge their obligations of the decree above leaving it to the sole discretion of the Plaintiff/Appellant to recover the said amount from any of the said Defendants. Issue of Limitation In terms of the decree dated 22nd May, 2015, the Respondent had to make the payment of ₹ 4 crore within twelve weeks (i.e. on or before 14.08.2015) from the date of order. The sum of ₹ 1 crore had to be made on or before 07th July, 2015 failing which, the entire sum was liable to be decreed. By the order of Hon ble High Court dated 06th August, 2015, on the Respondents applica .....

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