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TMI Blog2021 (3) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 (in short 'I&B Code') against the impugned order dated 07.07.2020 passed in C.P. (IB) No. 189/9/NCLT/AHM/2017. Whereby Ld. Adjudicating Authority (National Company Law Tribunal) Ahmadabad Bench, rejected the Application under Section 9 of the I&B Code, as barred by limitation. 2. Brief facts of this case are that the Operational Creditor (Appellant herein) supplied printing and packaging material to the Corporate Debtor (Respondent herein).The last payment was made on 22.11.2004. On 11.01.2005 the Corporate Debtor has acknowledged outstanding dues amounting to Rs. 1,48,11,572/- as on 31.12.2004. However, the Corporate Debtor failed to make the payment. Due to financial crunch the Corporate Debtor was referred to BIFR in case No. 83 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that under Section 22(1) of the SICA provides that proceedings or suit as specified under Section 22(1) of the SICA can be instituted or proceeded with the consent of BIFR/AAIFR. The Operational Creditor is not part of reference therefore, he cannot claim exclusion of period under section 22(5) of the SICA for the purpose of computation of limitation. Thus dismissed the application under section 9 of the I&B Code as time barred. 5. Being aggrieved with this order the Operational Creditor has filed this Appeal. 6. Ld. Counsel for the Appellant (Operational Creditor) submitted that BIFR in case No. 83 of 2005 vide order dated 17.07.2013 observed that the Respondent (corporate debtor) has proposed for settlement of outstanding dues at 20% an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt which is became due and payable. In this case, during the proceedings before the BIFR, the liability of the Appellant (Operational Creditor) was recognised and acknowledged in the scheme. 9. It is also submitted that Ld. Adjudicating Authority, in the impugned order wrongly mentioned that the Appellant (Operational Creditor) has filed suit for recovery of Operational Debt actually, the suit was filed for declaration and permanent injunction against the Respondent (Corporate Debtor) not to alienate or transfer their assets. 10. It is also submitted that for recovery of operational debt there was a statutory bar under Section 22(1) of the SICA. Therefore, there was no need to file an Application seeking exclusion of period under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit. The Respondent challenged this order before Hon'ble High Court of Gujarat in Special Civil Application No. 17055 of 2014. Hon'ble High Court vide order dated 11.09.2015 the proceedings of the Appeal were remanded to the Appellate Authority for rendering a fresh decision. Subsequently, Appellate Authority in Appeal No. 76 of 2014 vide order dated 17.12.2015 disposed of the Appeal with the clarification that if the Appellant (Operational Creditor) feels at any stage during the implementation of the sanctioned scheme that the objects of the scheme have already been fulfilled and the Respondent Company stands revived even prior of the completion of the scheme, it would be at liberty to approach the BIFR to make such prayer for execution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bench also observed that the company would have sufficient cash to meet these unsecured creditors after 2017 by which time the company would also turn net worth positive. Thus, the bench observed no change to clause 8(2) on page 15 of the DRS is required." 17. During sanction of the rehabilitation scheme Appellant filed an application M.A. No. 603 of 2010 under Section 22(1) of the SICA before the BIFR. BIFR vide order dated 20.11.2012 allowed the application and the Appellant was permitted to approach appropriate Civil Court for adjudication of its dues, with the condition that if any, decree awarded by the Court, it would be executed with prior approval of BIFR. 18. With the aforesaid facts, it is clear that the Appellant was not ready ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Coordinate Bench of this Appellate Tribunal in the case of M/s Gouri Prasad Goenka Vs. Punjab National Bank & Anr. C.A.(AT) (Ins) No. 28 of 2019. 22. In the forgoing Paras we hold that the Appellant was not part of the scheme and he has obtained the consent of BIFR for initiating its legal right of remedy against the Respondent Company before the Civil Court. Thus the remedy against the Respondent was not suspended, therefore, the Appellant is not entitled to claim extension of period of limitation by virtue of exclusion of period of suspension. 23. With the aforesaid, we are of the view that the facts of this case are distinguishable from the facts of Gouri Prasad Goenka (Supra). Thus, this Judgment is not helpful to the Appellant. 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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