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TMI Blog2024 (5) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case are that the Applicant had earlier filed an application under Section 94 of IBC bearing No. 91/CH/2021, which was dismissed for non-compliance on 01.02.2024. Subsequently, the Applicant filed an IA No. 518/2024 under Rule 48 r/w Rule 11 of the NCLT Rules, 2016 for restoration of the original Application no 91/CH/2021. On 28.02.2024. The Ld. Counsel for the Applicant after arguing for some time, sought to withdraw the said IA No. 518/2024 with liberty to refile the petition under 94 of the Code as per law. Accordingly, the said IA was dismissed as withdrawn with liberty aforesaid. The Applicant has now filed a fresh Application No. 61/Chd/HP/2024 under Section 94 of IBC, which is before us. 3. One of the Financial Creditors, i.e., IDBI Bank (hereinafter referred to as the "Respondent/Caveator"), filed a Caveat No. 7 of 2024 under Rule 25 of the NCLT Rules, 2016, wherein it is stated that Mrs. Gagandeep Kaur had earlier filed an application No. CP IB No. 91/CH/2021 before this adjudicating authority, in which vide order dated 06.05.2022, the Petitioner was directed to make compliance and eligibility under Section 94 (4) &94(5) of the Code. However, the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the present Application under section 94 of the IBC, 2016 without challenging the earlier order dated 01.04.2024 vide which his earlier Application under section 94 of the IBC, 2016 was dismissed for non-compliance. Moreover, the Applicant while filing the present Application, has also stated that he was given liberty by this Adjudicating Authority vide order 28.02.2024 to file a fresh Section 94 application. However, it is worth mentioning that the order dated 01.02.2024, vide which the Application bearing CP (IB) No. 91/CHD of 2021 was dismissed by this Tribunal, has attained finality as the Petitioner/ Personal Guarantor had chosen not to challenge the said order in appeal before the Hon'ble Appellate Authority. 4.5 The present petition filed by the Applicant/ Personal Guarantor is nothing but abuse of the process of law and has been filed only with an intention to misuse the Interim moratorium granted under section 96 of IBC, 2016, while mis-utilizing the interim moratorium for more than 3 years, which is only aimed at defrauding its creditors and delaying the recovery proceeding under SARFAESI Act, 2002 and other provisions of law. 4.6 Once the Applicant/ Personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T held that "the mere fact instead of reviving company petition, a fresh company petition has been filed under section 7 shall not be reason to reject the company petition and not to entertain the said company petition." C. Md. Sadique Islam and Ors. v. Niraj Kumar Agarwal and Ors Company Appeal (AT) (Insolvency) No. 1081/2022, in which it was held by Hon'ble NCLAT that "We, thus, are of the view that the order passed by the Adjudicating Authority cannot be sustained. Order impugned is set aside. The Application LA. No.314/KB/2021 is revived before the Adjudicating Authority to be heard afresh and decided in accordance with law". 5.3 As regards the Suri Rajendra Rolling Mills V. Bengani Udyog Pvt. Ltd. case referred to by the IDBI Bank, the Applicant/ Personal Guarantor has contended that the above case differs from the present case in terms that in the present case, the Tribunal granted liberty to refile the application under Section 94(1) IBC. It has placed reliance on the following excerpts of the said judgment "A look at the order demonstrates that this Applicant was permitted to withdraw a similar application filed for the same cause of action without liberty to file fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffidavit in compliance with the order dated 06.05.2022 vide Diary No. 01343/1 dated 17.02.2023, but the same was not taken on record because of the non-appearance of the petitioner before the Court. As he has not complied with the order in due course of time, the same is not be taken on record. Moreover, he has also stated that the valid AFA of the proposed RP has not been filed yet. It is pointed out by learned counsel for the Respondent-Corporate BankIDBI that the mortgaged property of the Petitioner is being put for auction under the provisions of the SARFAESI Act, 2002 but because this interim moratorium has been misused by the petitioner for the last three years and there is no need to adjourn the matter again. In these circumstances, there is no reason to again adjourn the matter for necessary compliance. Thus, the present petition is dismissed for non-compliance. However, we are refraining ourselves from imposing the cost upon the learned counsel for the Petitioner for misuse of the process of law. File be consigned to record room." (Emphasis placed) 8. From the aforesaid order dated 01.02.2024 of this Adjudicating Authority, we observe that: (a) In that order, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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