TMI Blog2022 (1) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... ich provides that the provisions of Limitation Act shall, as far as may be, apply to the proceedings or Appeals before the Adjudicating Authority, the National Company Law Appellate Tribunal. Therefore, we find no force in the argument - Admittedly, the issue of limitation is mixed question of fact and law, therefore, we are unable to convince with the argument of Ld. Sr. Counsel that such issue can be raised at any stage even before the Higher Court. In the facts of present case the Adjudicating Authority is not competent to recall the order of initiation of CIRP. Whether the liquidation order suffers from material irregularity? - HELD THAT:- Admittedly, in this matter even after extended period beyond 180 days no resolution plan had been received. Therefore, CoC with 92.29% voting share passed the resolution for liquidation of the Corporate Debtor. Therefore, the RP filed the Application before the Adjudicating Authority for order of Liquidation - The Appellant has not filed any objection before the Adjudicating Authority in regard to the Application filed by the RP for seeking order of liquidation. The order of liquidation can be set aside only when there is any material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought from the Adjudicating Authority. During the extended period Mr. RP Khosla had submitted its EOI on 10.08.2019, however, the same had been found ineligible and non-compliant with the requirements of the invitation of EOI. The CIRP period was ended on 22.09.2019. However, RP has filed the Application for extension of CIRP period by 90 days beyond 180 days. The same was allowed vide order dated 11.10.2019 and CIRP period extended upto22.12.2019. In extended period M/s Sarvesh Export Pvt. Ltd. submitted a resolution plan on 21.11.2019 and corrigendum to a resolution plan on 20.12.2019, however, the same was found non-compliant to the requirements of the Request for Resolution Plan and provisions of IBC by the RP. 4. The CoC in its 09th meeting held on 21.12.2019 after discussions concluded that there are no other avenues left but to explore the liquidation process for Corporate Debtor. Accordingly, resolutions were passed by the CoC with 92.29% voting share. Therefore, in accordance with Regulation 27 of the Insolvency and Bankruptcy Board of India (Corporate Insolvency Resolution Process for Corporate Persons) Regulations, 2016 (CIRP Regulations), the RP had appointed two re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lmost 18 years from the date of default. It is true that the issue of limitation was not raised when the order of initiation of CIRP was passed and against that order the Appeal has been decided by this Appellate Tribunal because at that time it was not clear whether the provisions of Limitation Act would be applied to IBC proceedings or not. Hon ble Supreme Court in the case of Gaurav Hargovindbahi Dave VsAsset Reconstruction Company (India)Ltd. Anr. Civil Appeal No. 4952 of 2019 decided on 18.09.2019, Jignesh Shah Anr.Vs. Union of India Anr. WP (C) No. 455 of 2019 decided on 25.09.2019 and Sagar Sharma vs. Phoenix Arc Pvt. Ltd. Civil Appeal No. 7673 of 2019 decided on 30.09.2019 laid down that the provisions of Limitation Act would be applicable to IBC proceedings. 11. It is also submitted that the issue of limitation goes to the root of the jurisdiction of the Adjudicating Authority to decide a time barred claim. The Adjudicating Authority by virtue of Section 3 of limitation Act, was duty bound to dismiss the Petition even if the objection had not been raised by the Appellant. 12. Ld. Sr. Counsel for the Appellant submitted that Ld. Adjudicating Authority while exercisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and at this stage when the order of liquidation has been passed such issue of limitation cannot be legally entertained otherwise also the Application under Section 7 of IBC is filed within limitation. Submissions in CA (AT) (Ins) No. 1124 of 2020 16. Ld. Sr. Counsel for the Appellant submitted that Ld. Adjudicating Authority without hearing any of the parties allowed the Application CA No. 121 of 2020 and by the impugned order dated 15.10.2020 ordered for liquidation of the Corporate Debtor and also appointed liquidator. In support of this argument he drew our attention towards the various order sheets between 17.01.2020 to 14.10.2020. 17. It is also submitted that Ld. Adjudicating Authority should have first decide the Application filed by the Appellant for recalling the admission order in which substantial issue of limitation has been raised, without deciding the application passed the order of liquidation and committed material irregularity. Therefore, the order of liquidation is liable to be set aside. 18. Refuting the argument, Ld. Sr. Counsel for the Respondent No. 1 submitted that the CoC passed a resolution by 92.29% voting share for liquidation of the Corp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, we are referring the relevant paras of subsequent Judgment i.e. AV Papayya Sastry (Supra) as under:- 22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order - by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. . . 38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all the parties was, in great part, assisted by the false statement made by the petitioner/non-applicant in the list of dates (page C) of the prescribed form for invocation of the jurisdiction of this Hon ble Tribunal, wherein, it was falsely set out that the cause of action arose on 05.04.2016, when it actually arose as far back on 24.09.2014. At the cost of reiteration, it is most respectfully submitted that the date stipulated in the List of Dates is contradicted by the date of default stated in Part IV Particulars of Financial Debt the date of default has been stipulated by the Petitioner Company itself as 29.07.2000. 10. Whereas, by suppressing the fact that there was no legally binding communication between the Company and the Petitioner/non-applicant after the letter dated 14.03.2014 written by the Petitioner/non-Applicant to the Company, this act of fraud gained traction, resulting in this issue not coming to the fore earlier. 24. The substance of the aforesaid allegations that the Respondent No. 1 in the Petition (Application) u/s 7 of IBC falsely set out that the cause of action arose on 05.04.2016 when it actually arose as far back on 24.09.2014. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... negotiated settlement, upfront amount of ₹ 50.00 lacs was payable on or before 31.12.2015 and the balance of ₹ 4.65 crore was to be paid on or before 31.03.2016 CD failed to honour the above settlement Reply- Annex R-8/Pg. 47 27.02.2016 Letter of the CD assuring EARC that it shall pay the re-negotiated amount of ₹ 5.15 crore by 31.03.2016 alongwith interest on ₹ 50.00 lacs for the default period i.e. an amount of about ₹ 2.00 lacs. CD failed to honour the above settlement Reply-Annex R-9/Pg. 48 -49 05.04.2016 Letter by EARC revoking the above OTS dated 27.02.2016 Reply- Annex R-10/Pg. 50 12.06.2018 Section 7 Application filed by EARC which was registered as CP No. 866/2018 Appeal- Annex-5/Pg. 124 146 25. The Appellant has failed to convince us that the Respondent No. 1 has committed any act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. The Appellant has not shown an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable to convince with the argument of Ld. Sr. Counsel that such issue can be raised at any stage even before the Higher Court. 31. With the aforesaid discussion, we are of the view that in the facts of present case the Adjudicating Authority is not competent to recall the order of initiation of CIRP. Issue No. (ii) Whether the liquidation order suffers from material irregularity? 32. Admittedly, in this matter even after extended period beyond 180 days no resolution plan had been received. Therefore, CoC with 92.29% voting share passed the resolution for liquidation of the Corporate Debtor. Therefore, the RP filed the Application before the Adjudicating Authority for order of Liquidation. 33. It is argued on behalf of the Appellant that before passing of the order of liquidation no opportunity of hearing has been given to the Appellant. The Appellant has not filed any objection before the Adjudicating Authority in regard to the Application filed by the RP for seeking order of liquidation. The order of liquidation can be set aside only when there is any material irregularity. The Appellant has failed to point out any material irregularity. Therefore, we find ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
