TMI Blog2023 (1) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the I B Code, 2016, is to provide a reasonable opportunity, to a Corporate Debtor, and as per sub-section 4 (7) of the Code, is to ascertain the factum of Default, from the records of Information Utility or from the evidence furnished, by the Financial Creditor - Where the Record showed that an Application / Petition was preferred on the Proforma, prescribed under the Rule 4 (2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, and if an Adjudicating Authority, was satisfied, if the Default, had taken place, there is no illegality, in admitting the Application, filed by the Financial Creditor, under the I B Code, 2016. An Application / Petition, under Section 7 of the Code, is to be considered by an Adjudicating Authority, on its own merits, taking into consideration of the available materials on record - Where the post filing, the Notice, as required under Rule 4 (3) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, was sent to the Corporate Debtor, and if the said Corporate Debtor, does not appear, before the Adjudicating Authority, the Petition, filed by a Financial Creditor, can be determined Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no interference, in the hands of this Tribunal, sitting in Appeal. Consequently, the Appeal fails. Appeal dismissed. - Company Appeal ( AT ) ( CH ) ( INS. ) No. 414 of 2022 - - - Dated:- 2-1-2023 - [Justice M. Venugopal] Member (Judicial) And [Naresh Salecha] Member (Technical) For the Appellant : Mr. P.H. Arvindh Pandian, Senior Advocate For Mr. Muthuchharan Sundresh and Mr. Nithin Chowdary Pavuluri, Advocates For the Respondent No.1 : Mr. M.S. Krishnan, Senior Advocate For Mr. M.G. Pranava Charan, Advocate For the Respondent No.2 : Mr. Sai Ramesh Kanuparthi, IRP in person JUDGMENT ( Virtual Mode ) Justice M. Venugopal , Member ( Judicial ) : Background: Company Appeal (AT) (CH) (INS.) No. 414 of 2022 : The Appellant / Respondent (the Suspended Director Mr. T.V. Sandeep Kumar Reddy of M/s. Gayatri Projects Limited / Corporate Debtor ), has preferred the instant Comp. App (AT) (CH) (INS.) No. 414 of 2022, before this Tribunal , as an Aggrieved Person , on being dissatisfied with the impugned order dated 15.11.2022, in CP(IB) No. 308 / 07 / HDB / 2022, (Filed under Section 7 of the Insolvency and Bankruptcy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckage was approved by the Joint Lenders Forum on 19.01.2015 ( Approved JLF ). In furtherance of the said package, the Applicant also sanctioned the said restructured facilities to the Corporate Debtor. d. That the Applicant submits that the Corporate Debtor has executed Master Restructuring Agreement dated 23.01.2015 wherein the existing loans were restructured in terms of the said Agreement. The details of the existing loans upon restructuring of the existing loans by lenders including the Applicant are as follows: In Crores Facility Aggregate Limit Facility A-Restructured Term Loan 450.00 Facility B-Rupee Term Loan (ECB) by IDBI Bank 135.00 Facility C-Working Capital Term Loan 165.23 Facility D-Funded Interest Term Loan (FITL) 130.99 Facility E-Cash Credit 776.00 Facility F-Bank Guarantee and Letter of Credit 2563.81 Total 4221.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oan - Facility D-Funded Interest Term Loan (FITL) - Facility E-Cash Credit 50.00 Sub limit of CC (30.00) Facility F-Bank Guarantee and Letter of Credit 250.00 Facility G-COVID Emergency Credit Line (CECL) 5.00 Facility H- COVID FITL 4.45 Facility I-Arbitration BGs by Canara Bank IDBI as sub-limit of existing limits - Total : 309.45 h. The aggregate amount of default of the Corporate Debtor with respect to Applicant/Financial Creditor as on 30.09.2022 is Rs.242,33,00,269/- (Rupees Two Hundred and Forty-Two Crores Thirty-Three Lakhs Two Hundred and Sixty-Nine only) and the date of default along with days of default with respect to facilities availed by Corporate Debtor have been annexed Exhibit-4 at Page No.34. i. The account of Corporate Debtor has been declared as Non-Performing Asset (NPA) on 30.04.2022 with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orporate Debtor , was called absent , and since the Corporate Debtor , was served, Service was held sufficient , and set ex-parte and the matter was directed to be listed, on 10.11.2022 . 4. It comes to be known that the said Petition , came to be listed on 10.11.2022, before the Adjudicating Authority , wherein, the matter was heard ex-parte and reserved for Judgment . 5. In fact, exactly 14 days of the service of Notice and 20 days after the issuing of Notice , the Adjudicating Authority , had Reserved the matter for Judgment Ex-parte . 6. According to the Appellant , the Corporate Debtor , projected Two Interlocutory Applications , (a) IA No. 1339 of 2022, filed under Rule 49 (2) r/w Rule 11 of the NCLT Rules, 2016, seeking to set aside the ex-parte order , dated 04.11.2022, passed by the Adjudicating Authority (b) IA No. 1338 of 2022 (filed under Section 60 (5) of the Insolvency and Bankruptcy Code, 2016, r/w. Rule 11 of NCLT Rules, 2016, seeking to recall the Order dated 10.11.2022. 7. It is represented on behalf of the Appellant that the IA Nos. 1338 1339 of 2022 , were filed by the Corporate Debtor , praying for providing a fair oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed ex-parte to dispose of the application. and comes out with a Plea , to ensure Fair Adjudication of Dispute , between the Parties , a Reasonable Opportunity of being heard , is to be provided. 12. It is the version of the Appellant that when a Statute specifies that a particular thing , is to be performed in a particular manner , it has to be done only in that fashion , and further that in the present case, the procedure enunciated , under Rule 37 of NCLT Rules, 2016, was not followed, by the Adjudicating Authority / Tribunal . 13. Advancing his argument, the Learned Counsel for the Appellant, relies on the Judgment of this Tribunal dated 14.07.2022 in Mr. Ashok Tiwari v. DBS Bank India Anr. (vide Comp. App (AT) (INS) No. 464 of 2022), wherein, at Paragraphs 9 and 12, it is observed as under: 9. 29th March, 2022, was the first date of hearing before the Adjudicating Authority and as per Rules, that is, National Company Law Tribunal Rules, 2016, when notice is issued in Form No.NCLT-5, by the Adjudicating Authority, the Corporate Debtor is to file a reply accompanied with an affidavit, along with copies of such documents on which it relies befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anr. (vide Comp. App (AT) (INS) No. 313 of 2022, wherein, at Paragraphs 7 to 10, it is observed as under: 7. The present is the case where the counsel appeared and made a request for filing 'Vakalatnama' and 'Reply'. Learned Adjudicating Authority has simply observed in paragraph 9 that despite notice was served, no one has appeared. We have no reasons to disbelieve the Affidavit filed by the Counsel in this Appeal, that he appeared and made a request to file the 'Vakalatnama' and 'Reply'. We are of the view that at least one opportunity ought to have been given to the Respondent to file his Reply. The Order dated 17.02.2022 being virtually Ex-Parte deserve to be set aside. The Corporate Debtor is allowed one week time from today to file its 'Reply' before the Learned Adjudicating Authority and the Financial Creditor may also file their Rejoinder within two weeks, thereafter. 8. Further, with regard to the amount deposited by the Financial Creditor in pursuance of the Para-16 of the impugned order Learned Adjudicating Authority shall pass appropriate Order in the pending proceedings. Learned Counsel for the Parties are at liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the appellant had undertaken a search of the register of process fee and summons, and the file concerned in the office of the NCLAT on 28-2-2019. However, no record of Respondent 1 having paid the process fee for issuance and service of notice to the appellant was found. 10. Thus, in view of the above position, it is abundantly clear that no notice was served upon the appellant before the NCLAT as stipulated under the Rules, and the right of the appellant to be heard, audi alteram partem, has been violated [see: Ghaziabad Development Authority v. Machhla Devi5. 11. In the facts and circumstances of the case, we are of the considered opinion that the instant appeal can be disposed of by setting aside the order of NCLAT and remanding the matter back to the NCLAT for fresh consideration. Accordingly, we set aside the impugned order dated 8-2-2019, passed by the NCLAT and remand the matter back to NCLAT with a direction to dispose of the matter as expeditiously as possible after affording an opportunity of hearing to the parties. The appellant and the respondents are also directed to approach the NCLAT on 13-3-2019 with a prayer for early listing of the matter. It is cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petition , in a mechanical manner. 21. The Learned Counsel for the Appellant advances an argument that as per Rule 37 (3) of the NCLT Rules 2016, only on receipt of the notice, issued under Rule 37 (1) and 34 (4) of the NCLT Rules, 2016, that the Right of the Appellant , to contest the Notice , arises. 22. Moreover, no Notice , was received, as per the requirement of the NCLT Rules, 2016, and that the Appellant , was not required to enter an appearance or file its Reply . 23. The Learned Counsel for the Appellant contends that the Section 7 Application of the Code, filed by the 1st Respondent / Bank was allowed in a total span of 25 days from the date of preliminary hearing , i.e., on 21.10.2022 and this shows that the proceedings before the Adjudicating Authority , were conducted in a haste manner. 24. While summing up his arguments, the Learned Counsel for the Appellant prays for allowing of the instant Appeal , to secure Ends of Justice . Pleas of 1st Respondent / Bank: 25. The Learned Senior Counsel for the 1st Respondent / Bank submits that as on 30.09.2022, the 2nd Respondent ( Borrower ) and the Appellant (Guarantor ), are lia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the 1st Respondent, by adverting to Rule 4 of the Insolvency and Bankruptcy (Application to Adjudicating Authority ) Rules, 2016, submits the 1st Respondent / Bank , had sent the Notice , to the Registered Office of the 2nd Respondent , on 17.10.2022, and that the 1st Respondent / Bank , had sent the Application , to the 2nd Respondent , through the official email of the 2nd Respondent , found in the Company s Master Data . 33. On behalf of the 1st Respondent / Bank , it is pointed out that the main CP (IB) No. 308 / HDB / 2022, came before the Adjudicating Authority / Tribunal , for the First Hearing , on 21.10.2022, and that the Adjudicating Authority , had directed the 1st Respondent / Bank , to issue Private Notice to the 2nd Respondent , through a Registered Post and Email . 34. Pursuant to the Orders of the Adjudicating Authority , the 1st Respondent , had issued the Notice , through a Registered Post and Email on 25.10.2022 and that the 1st Respondent , had filed a Memo , attaching the Proof of Delivery of the Notice , on the 2nd Respondent (vide Pages 20 to 22 of Reply), filed by the 1st Respondent / Bank . 35. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cally indicates, Omit if not applicable , meaning that the Parties , can omit the irrelevant part , and submit only the necessary and therefore, even otherwise, there is no violation of Rule 38 of the NCLT Rules, 2016. 41. The Learned Counsel for the 1st Respondent contends that the Appellant in one of their pleadings admit that they had received the Notice from the 1st Respondent / Bank , but the Security Personnel , had misplaced the same, somewhere (vide Page 69 of the Appeal Paper Book of the Appellant ). 42. In substance, the plea of the 1st Respondent / Bank is that the Bank, had sent Notices through Email and Post, on two occasions, Viz. 17.10.2022 and 25.10.2022 and totally four Notices two through Email, one through Courier and one through RPAD were sent. 43. According to the 1st Respondent / Bank, the Order of the Adjudicating Authority , is not to be displaced, just on a hyper technical objection, that Notice under the Format, given under Form No.5, was not given by the Adjudicating Authority , even assuming without admitting that the Adjudicating Authority , ought to have issued Notice , under Form No.5. 44. The Learned Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the 1st Respondent / Bank , and there would not be any reason to stop the Corporate Insolvency Resolution Process proceedings and remit the matter, back to the Adjudicating Authority . 48. The Learned Counsel for the 1st Respondent / Bank points out that the exposure of the 1st Respondent / Bank , is about Rs.242 Crores, as on 30.09.2022, the exposure of Bank of Baroda , is Rs.1287.08 Crores and the Canara Bank , is Rs.1,520.74 Crores. As such, there cannot be any plausible defence / ground / contention for this Tribunal , to even consider taking back the Order of Initiation of Corporate Insolvency Resolution Process , against the 2nd Respondent and further that the Corporate Insolvency Resolution Process , is not only beneficial for the Creditors at large, but also for the 2nd Respondent , to revive . 49. The Learned Counsel for the 1st Respondent / Bank points out the Judgment of the Hon ble Supreme Court of India dated 14.05.2015, in Dharampal Satyapal Limited v. Dy. Commissioner of Central Excise and Ors. (vide Civil Appeal No. 4458 4459 of 2015), reported in MANU/SC/0615/2015, wherein, it is observed as under: We are not concerned with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fair hearing. 50. The Learned Counsel for the 1st Respondent falls back upon the decision of the Hon ble Supreme Court of India in Escorts Farms Limited (previously known as Escorts Farms (Ramgarh) Ltd. v. Commissioner Kumaon Division, Nainital, U.P. and Ors., reported in MANU/SC/0144/2004 : (2004) 4 SCC at Page 281, wherein, it is observed as under: Right of hearing to a necessary party is a valuable right. Denial of such right is serious breach of statutory procedure prescribed and violation of rules of natural justice. In these appeals preferred by the holder of lands and some other transferees, we have found that the terms of Government Grant did not permit transfers of land without permission of the State as grantor. Remand of cases of a group of transferees who were not heard, would, therefore, be of no legal consequence, more so, when on this legal question all affected parties have got full opportunity of hearing before the High Court and in this appeal before this Court. Rules of natural justice are to be followed for doing substantial justice and not for completing a mere ritual of hearing without possibility of any change in the decision of the case on meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... borne in mind that problem in respect of service of summons has been one of the major causes of delay in the due progress of the case. It is common knowledge that the defendants have been avoiding to accept summons. There have been serious problems in process serving agencies in various courts. There can, thus, be no valid objection in giving opportunity to the plaintiff to serve the summons on the defendant or get it served through courier. There is, however, danger of false reports of service. It is required to be adequately guarded. The courts shall have to be very careful while dealing with a case where orders for deemed service are required to be made on the basis of endorsement of such service or refusal. The High Courts can make appropriate rules and regulations or issue practice directions to ensure that such provisions of service are not abused so as to obtain false endorsements. In this regard, the High Courts can consider making a provision for filing of affidavit setting out details of events at the time of refusal of service. For instance, it can be provided that the affidavit of person effecting service shall state as to who all were present at that time and also that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating Authority , is not a Civil Court , to determine the Violation of a Contract , between the Parties , in the considered opinion of this Tribunal . 63. Really speaking, an Application / Petition , under Section 7 of the Code, is to be considered by an Adjudicating Authority , on its own merits , taking into consideration of the available materials on record . 64. Where the post filing, the Notice , as required under Rule 4 (3) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 , was sent to the Corporate Debtor , and if the said Corporate Debtor , does not appear , before the Adjudicating Authority , the Petition , filed by a Financial Creditor , can be determined Ex-parte . There is no prohibition in Law , in this regard. 65. An Application , under Section 7 of the I B Code, 2016, is not to be rejected , merely on technical ground . An Acknowledgement its Meaning: 66. Under the Limitation Act, 1963, an Acknowledgement , ought to be in writing and signed by a Person , making an Acknowledgement . In fact, the exact sum or nature of Claim , need not be Acknowledged . 67. The require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice issued by this Hon ble Tribunal and the same was not done to evade the proceedings before this Hon ble Tribunal. The Corporate Debtor is actively contesting matters before this Hon ble Tribunal as well as other forums. It is submitted that the Corporate Debtor has been in talks with several investors and is expecting to receive loan sanctions of approximately 5000 crores and is in the final stage of securing necessary compliances from concerned statutory authorities. That the details of the matters contested by the Corporate Debtor before this Hon ble Tribunal is as given below: S. No. CP No. Parties Status 1 CP IB 317/7/HBD of 2021 SERI Vs Gayatri Projects Ltd Contesting 2 CP IB 32/7/HBD of 2022 Bank of Baroda Vs Gayatri Projects Ltd Contesting 3 CP IB 26/7/HBD of 2022 IL FS Vs Gayatri Project Ltd Contesting 4 CP IB 116/7/HBD of 2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37 of NCLT Rules, 2016. 80. The Learned Counsel for the Appellant contends that Rule 38 (1) of NCLT Rules, 2016, any notice or process to be issued by the Tribunal , may be served by post [or by courier] or at the e-mail address as provided in the petition or application or in the reply , and further that Rule 38 (2) of the NCLT Rules, 2016, (2) The notice or process if to be served physically may be served in any one of the following modes as may be directed by the Tribunal;- (a) by hand delivery through a process server or respective authorised representative; (b) by registered post or speed post with acknowledgment due; or (c) service by the party himself [Explanation. For the purposes of sub-rules (1) and (2), the term courier means a person or agency which delivers the document and provides proof of its delivery.] , comes into existence, only in cases, where there is a direction from Tribunal , to serve the Notice physically, comes into existence, in respect of cases, where there is a discretion from Tribunal , to serve the Notice physically, and added further unless there is a specific direction from the Tribunal , Rule 38 (2) of NCLT Rules, 2016, will have n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, the 1st Respondent / Bank , had sent a copy of the Application , to the Registered Office of the 2nd Respondent on 17.10.2022, and that, the Application , was sent to the 2nd Respondent , through the Official Email Address of the 2nd Respondent , available in the Company Master Data (vide Pages 13 to 16 of the Reply, filed by the 1st Respondent / Bank dated 28.11.2022, received in Diary No. 3082 dated 29.11.2022 by the Registry of the Tribunal . 86. It is the version of the 1st Respondent /Bank that the Adjudicating Authority on 21.01.2022 in main CP (IB) No. 308 / 7 / HDB / 2022, had directed the 1st Respondent / Bank to issue Private Notice to the 2nd Respondent , through Registered Post and E-mail and that in obedience to the said direction issued, the 1st Respondent had issued Notice , through Registered Post and Email on 25.10.2022 (vide Page 20 of the Reply, filed by the 1st Respondent / Bank Appeal Paper Book of the Bank in Diary No. 3082 dated 28.11.2022), and to that effect, a Memo , attaching Proof of Delivery of Notice , on the 2nd Respondent , was filed before the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Authority) Rules, 2016, the 1st Respondent / Bank , had sent the copy of the Application , to the Registered Office of the 2nd Respondent / M/s. Gayatri Projects Ltd , on 17.10.2022, and further that the 1st Respondent / Bank , had sent the Application , under Section 7 of the I B Code, to the 2nd Respondent / M/s. Gayatri Projects Limited , Official email address, available in the Company Master Data , and therefore, the 1st Respondent s /Bank s dispatch of the copy of Application , filed with the Adjudicating Authority , to the 2nd Respondent , through its Official E-mail Address, available in the Company Master Data, cannot be found fault with, because of the latent and patent fact that through Electronic means, as per Rule 4 (3) of the The Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016, the same is in Order of Sufficient Compliance of the requirement of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 91. In fact, through Courier DTDC Express Limited, Bengaluru 560047, to the 2nd Respondent / M/s. Gayatri Projects Limited , Hyderabad City, the Consignment , was sent on 17.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by himself, where a Notice , was issued by the Tribunal , in the relevant Form , and not a Private Notice , issued by the Party, himself. 95. It is pertinently pointed out that the Notice , issued by a Tribunal , to the Opposite Party , speaks of Form No. NCLT.5 , which shall be accompanied by a copy of the Application with supporting documents , and certainly, the Notice , issued by the Tribunal ( Adjudicating Authority - National Company Law Tribunal ), cannot be kept on the same pedestal, in respect of a Private Notice , issued by the Party . 96. In the instant case, it cannot be forgotten that the Adjudicating Authority ( Tribunal ), on 21.10.2022 at 2.30 P.M. (through Video Conferencing Hearing in CP (IB) / 308 / 7 / HDB / 2022), had directed the 1st Respondent / Bank ( Financial Creditor ), to serve Notice to the 2nd Respondent / M/s. Gayatri Projects Ltd. ( Corporate Debtor ), by Speed Post , and Email , within 5 days from today, i.e., 21.10.2022 and the Proof of Service , was directed to be filed, before the next hearing date . In the meanwhile, the Counter, if any, by the Corporate Debtor ( 2nd Respondent in Appeal ), was directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 114 of the Evidence Act. Even when a notice is received back with an endorsement that the party has refused to accept, still then a presumption can be raised as regards the valid service of notice. Such a notice, as has been held by a Three-Judge Bench of this Court in C.C. Alavi Haji v. Palapetty Muhammed and Another [(2007) 6 SCC 555] should be construed liberally, stating : 17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of criminal law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under Section 138 of the Act, make payment of the cheque amount and submit to the court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on 10.11.2022. 102. Admittedly, the Adjudicating Authority , had posted the matter on 10.1.2022, after setting the 2nd Respondent / Corporate Debtor , Ex-parte , on 04.11.2022. When the main CP (IB) / 308 / 7 / HDB / 2022, came up for hearing on 10.11.2022, there was no appearance , on the side of the 2nd Respondent / Corporate Debtor , and the matter was Reserved for Orders , on 10.11.2022, giving liberty to the Financial Creditor ( 1st Respondent / Bank ), to file written submissions, not exceeding 5 pages within 3 days . 103. It transpires that, only on 15.11.2022, the Adjudicating Authority ( NCLT , Hyderabad Bench II), passed an Order of Admission of the Application , in CP (IB) / 308 / 7 / HDB / 2022 (filed by the 1st Respondent / Bank ( Financial Creditor). 104. In view of the above factual scenario, the Contra Plea , taken on behalf of the Appellant that there was no opportunity / enough opportunity provided to the 2nd Respondent / Corporate Debtor , by the Adjudicating Authority ( Tribunal), has no legs to stand in the eye of Law . 105. A mere running of the eye, in respect of Rule 38 - Service of Notices and Processes , of the N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed by a Stakeholder / Litigant , has the Force of Law , in the considered opinion of this Tribunal . 110. It is pointed out that the Insolvency and Bankruptcy Code, 2016 (31 of 2016), received the assent of the Present on 28.05.2016 and was published in the Gazette of India, Ext; Pt. II, S.1 dated 28-5-2016. 111. As a matter of fact, the National Company Law Tribunal Rules, 2016 (made by the Central Government in exercise of powers, conferred by Section 469 of the Companies Act, 2013), came into force on the date of publication in the Official Gazette (vide G.S.R.716 (E) dated 21-7-2016, published in the Gazette of India, Ext., Pt. II, S 3 (i), dated 22-7-2016. Adjudicating Authority: 112. Section 5 (1) of the I B Code, 2016, defines, an Adjudicating Authority , for the purpose of this Part (Part II), meaning National Company Law Tribunal , constituted under Section 408 of the Companies Act, 2013 (8 of 2013). Appellate Tribunal: 113. Section 410 of the Companies Act, 2013, (Chapter XXVII), provides for the Constitution of Appellate Tribunal ( National Company Law Appellate Tribunal ). Prologue of IBC: 114. A mere glance of the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. In the Reply of the Authorised Signatory of the 2nd Respondent / Corporate Debtor , dated 08.10.2022, addressed to the 1st Respondent / Bank (vide Page 173 at Page 175 of the 1st Respondent / Bank s Appeal Paper Book dated 29.11.2022 Diary No.3082 ), it is mentioned at Paragraph 5 (e) and (f), as under: e. We have receivables of about Rs.374/- crores from our current projects which receivables got struck with various government departments and others. Due to COVID-19 pandemic situation, there are no regular operations being carried on and there is a delay in receivables from various state governments and NHAI, because of which we are facing severe cash flow mismatch and they are finding it difficult to pay crucial dues from March 2021. Despite such difficulties, we are making all efforts to regularize the NPA status. f. We further bring to your attention that in view of the current financial crunch being faced by the Company, the Company and its promoters have sought for investment from third parties for the purpose of raising funds in the Company which would enable the Company to repay any pending dues and keep it as a going concern. M/s. Mark AB Capital ..... X X X X Extracts X X X X X X X X Extracts X X X X
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