TMI Blog2020 (3) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances, 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, therefore, the Appeal is allowed. - Company Appeal (AT) (Insolvency) No. 984 of 2019 - - - Dated:- 22-1-2020 - Justice Venugopal M. Member (Judicial), Kanthi Narahari Member (Technical), V. P. Singh Member (Technical) For the Appellant : Mr. Abhishek Singh and J. Amal Anand, Advocates For the Respondent : Mr. Kamaldeep and Mr. J. Jose, Advocates JUDGMENT [PER; V. P. SINGH, MEMBER (T)] This Company Appeal emanates from the Impugned Order dated 05th July 2019 passed by the Adjudicating Authority, National Company Law Tribunal, Bengaluru Bench, in C.P. (IB) No. 135/IB/2018 questioning the rejection of the Company Application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short I B Code ) by the impugned order. The Appellant questions the correctness of the impugned order dated 05th July 2019, pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Learned Adjudicating Authority to support the said averments and contention. The Learned Adjudicating Authority further mentioned in its order that the Petitioner has not explained the reasons as to why it has not prosecuted the judgment and decree it obtained as early as 2015 till now and as to why it has selectively chosen only the Corporate Debtor herein, leaving the personal guarantors and principal borrower . The above observation of the Learned Adjudicating Authority is incorrect because the liabilities of the Corporate Debtor , personal guarantors and principal borrower were joint and several 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 and in pursuance of that, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 filed before the Hon ble High Court of Delhi. On inquiry from the registry of the Hon ble Delhi High Court, it was learnt that a Review Application was filed with the registry on 13th December 2018 and the same was collected back by the Respondent on 17th December 2018 to cure the defects, as had been raised by the concerned registry. Appellant further contends that after withdrawing the review application, it was never re-filed. But the Respondent/Corporate Debtor had adopted unfair means, sham practices and made highly perjurous statements to claim that a review application seeking review of the decree and judgment dated 22nd May 2015 was pending before the Hon ble High Court of Delhi. The appellant further contends that after inspection by his Counsel on 19th August 2019, even af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew 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 application and for not taking any steps for execution of the decree. Adjudicating Authority was not required to question the reasons for not taking steps for executing the decree in Civil Court. Since the amount is payable to the Financial Creditor and based on the decree passed by the Court, the Financial Creditor was legally entitled to file a petition under Section 7 of the I B Code. It is important to point out that the definition of creditor provided in Sec 5(10) of the I B Code provides that Creditor means any person to whom a debt is owed and includes a financial creditor, an operational creditor, a secured creditor, an unsecured creditor and a decree-holder. Based on the decree of the Court this petition was filed U/S 7 of the Code. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 application seeking modification of decree dated 22nd May, 2015, to the extent that Respondent be permitted to pay ₹ 1 core on or before 21st August, 2015 at lesser rate of interest i.e. 8% per annum was declined. The entire suit was decreed in terms of the previous consent recorded on 22nd May, 2015. The Respondent/Corporate Debtor committed default in terms of Section 3(12) of the I B Code for the first time on 07th July, 2015 i.e. when the Respondent had to make the payment of the first instalment of ₹ 1 crore. However, on account of default the entire suit amount i.e. ₹ 8.04 crore alongwith 21% interest per annum became due and payable on 07th July, 2015 or after that on 06th August, 205 when the prayer for modification of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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