TMI Blog2023 (10) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. In fact, the pleadings can be amended, to substantiate, to elucidate and expand the pre-existing facts , already existing . Where an amendment, does not constitute and addition of a new case, but amounts to no more than adding to the facts already on record, the amendment , would be allowed, even after the statutory, period of limitation - An amendment , which is necessary for the just decision of a case, can be allowed. In the present case, even though, the Appellant / Respondent, had come out with the plea that the amendment in pleadings was sought for by the Respondent / Petitioner in application with the inordinate delay of 2 years, keeping in mind, of a prime fact, that the Amendment , in pleadings is in imperative one , for a proper, effective and efficacious adjudication of the controversies, involved in the main application on the file of the Adjudicating Authority / Tribunal - this Tribunal, comes to a consequent conclusion, that application is a Bonafide one and to minimise litigation between the parties and also that No Party , should suffer on account of technicalities of Law. Appeal dismissed. - [ Justice M. Venugopal ] Member ( Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completed, as on 18.11.2021. Later, seven hearings , took place and the Respondent / Petitioner, had never had any issue , in regard to the date of default , mentioned in Section 9 Application of the I B Code, 2016. 5. The Learned Counsel for the Appellant, points out that the Respondent / Petitioner, has an afterthought had projected an Interim Application to amend part IV of form 5, thereby the Respondent / Petitioner, was seeking to change the date of default from 23.10.2012 to 03.08.2018. 6. It is represented on behalf of the Appellant, that the only reason mentioned in the application, by the Respondent /Petitioner, for changing the date of default was at para V(vi) of the Application by stating that as a result of a typographical error, the date was mistakenly mentioned as 23.10.2012 instead of date on which the debt amount fell due on 03.08.2018. 7. It is the version of the Appellant, that the application was filed with an inordinate delay of 2 and half years, from the date of filing of the main Section 9 application, under the I B Code. Also that, the Adjudicating Authority / Tribunal had passed the non-speaking order allowing the interim application filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on submitted by the Appellant concluded. This attempt to set back the date of default to either 21 January 2020 or 23 March 2020 is plainly untenable for the reason that it is contrary to the disclosure made by the Appellant in the demand notice which has been issued in pursuance of the provisions of Section 8(1) and Section 9 of the IBC. The demand notice triggers further actions which are adopted towards the initiation of the insolvency resolution process. The question which needs to be resolved is whether Section 10A would stand attracted to a situation such as the present where the application Under Section 9 was filed prior to 5 June 2020, when Section 10A was inserted, and in respect of a default which has taken place after 25 March 2020. 11. The Learned Counsel for the Appellant, adverts to the judgment of this Tribunal dated 26.04.2023, in the matter of Ramdas Dutta Vs. IBDI Bank Limited (Company Appeal (AT)(Ins.) No.1285 of 2022) wherein at paragraph 18 and 19 it is observed as under:- 18. There is no dispute that the Bank did not mention the date of default in Part IV of Form 1 i.e. the application filed under Section 7 of the Code and disclosed the date of defa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the I B Code, 2016, praying for permitting the Respondent/Petitioner, to amend Part IV(1)(b), in Form 5, as per Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016 (at page 6 of IBA/491/2020 as under:- 14. The Learned Counsel for the Appellant, refers to the decision, in Company Appeal (AT)(Ins.) No. 98/2019, in M/s Next Education India Ltd. Vs. M/s. K12 Techno Services Private Limited wherein at paragraph 26 it is observed as under:- 26. As we hold that the date of default is 12.03.2011, the correspondence relied upon by the Appellant Counsel is dated 12.09.2015 and is beyond three years of the date of default, we are of the considered view that these documents do not extend the period of limitation. In the present case, the Operational Creditor failed to bring on record any acknowledgement in writing by the Corporate Debtor or its representative within three years of the date of the first default. As the scope and objective of the Code is not to give a fresh lease of life to time barred debts, we are of the considered view that the ratio of the Hon ble Supreme Court in Babulal Vardharji Gurjar (Supra) is squarely applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up any new cause of action or new pleadings, hence, no prejudice , will be caused to the Corporate Debtor . Therefore, the Respondent / Petitioner, had prayed, for allowing of the amendment of Part IV(1)(b) IV(2) in Form 5 as per Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. 20. The Respondent / Petitioner / Operational Creditor, in IA(IBC)/733/CHE)/2022 in IBA/491/2020, had referred to the judgment of the Hon ble Supreme Court in Asset Reconstruction Company (India) Ltd. Vs. Bishal Jaiswal Anr. (vide Civil Appeal No.323/2021 with 4 Others Civil Appeals), wherein it is held as under : 21. The Respondent / Petitioner in IA(IBC)/733/CHE)/2022 in IBA/491/2020 had referred to the judgment of the Hon ble Supreme Court in Rajendra Narottamdas Sheth Anr. Vs. Chandra Prakash Jain Anr. (vide Civil Appeal No. 4222/2020), wherein at paragraph 20, it is observed as under : 22. Also on behalf of the Respondent / Petitioner, before the Adjudicating Authority / Tribunal, in IA(IBC)/733/CHE)/2022 in IBA/491/2020, a reference was made to the decision of this Tribunal, in Vivek Malik, Suspended Director of Amazen M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner before the Adjudicating Authority / Tribunal on 16.03.2020. In the said Application (at page 6), the Respondent / Petitioner after conveniently omitting, to mention the date of default in Form 3, issued earlier, had mentioned a date on which the amount fell due as on 23.10.2012. 26. According to the Appellant / Respondent, for any Application to be admitted under the I B Code, 2016, proving the existence of a debt and default is mandatorily, in fact, that Respondent / Petitioner had mentioned 23.10.2012, as the date on which the alleged amounts fell due. 27. The Appellant / Corporate Debtor, before the Adjudicating Authority / Tribunal points out, that the Respondent / Petitioner had placed reliance, of the decision, of the Hon ble Supreme Court of India, in Dena Bank (Now Bank of Baroda) v. C. Shivkumar Reddy Anr. (2021) 10 SCC 330, wherein it was held that there is no bar in law to the amendment of pleadings in an Application under Section 7 IBC or to the filling of additional documents, apart from those initially filed along with application under section 7 IBC in Form 1 and according to the Appellant, this decision is distinguishable, very clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules of procedure, as the case may be. No person should suffer, in lieu of technicalities of law and to minimise the litigation between the parties. 35. Merits / demerits of the case, set up by the proposed amendment, would not be seen at that time of consideration of application, for amendment, but would be seen at that time of trial . 36. Where an amendment, does not constitute and addition of a new case, but amounts to no more than adding to the facts already on record, the amendment , would be allowed, even after the statutory, period of limitation, as per decision of the Hon ble Supreme Court in Vineet Kumar v. Mangal Sain (1984) 3 SCC 352. 37. An amendment is imperative, for a proper, and an effective adjudication of a case. No wonder, an Application , for Amendment must be Bonafide is not a Malafide . In fact, the Tribunal / Court , shall try the merits of the case, that comes before it and resultantly, permit the amendment(s) , that may be necessary for deciding the real controversies / disputes between the parties. 38. An amendment , which is necessary for the just decision of a case, can be allowed, as per decision Smt. Ratna Srivastava v. M.M. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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