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TMI Blog2025 (5) TMI 776X X X X Extracts X X X X X X X X Extracts X X X X ..... st, culpable negligence, and malicious and tortious action at the hands of the Technology Development Board (herein after referred to as 'TDB') and its Officer, along with further interest from the date of decree till its final payment. A claim is also staked against ICICI Bank and its Officers, as the Plaintiff alleged that she had suffered harassment, on account of the ill treatment meted out by the Bank, which has been instrumental in causing deficit in the accounts of the Plaintiff by charging exorbitant interest and initiating proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) without examining the stress in the account through a Committee, as contemplated under the MSMED Notification dated 29.05.2015. 2. The Appellant before us is Manisha Nimesh Mehta, the promoter of Perfect Infra Engineers Limited and it is her claim that she along with her husband commenced the unit of manufacturing of solar panels in the year 1994 and the Company did well for some length of time and its shares were listed on stock exchange. Since the Company needed technology upgradation, she entered into partnership w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n one occasion. 4. According to Mr. Nedumpara, the learned Counsel appearing for the Appellant, that the unit of the Appellant is an Micro, Small and Medium Enterprises (MSME) and therefore it is entitled for protection of the Notification issued by the MSME dated 29.05.2015 and the ICICI bank was under an obligation to identify incipient stress which it did not and according to him, the bank was under an absolute duty to create a special account, constitute a Committee and make an application to the Committee under Notification dated 29.05.2015 and no recovery could have been made against it except in manner permitted by the Committee. Apart from this, it is urged by Mr. Nedumpara that not a single bank or financial institutions in the Country had given effect to the Notification and even the RBI failed in its duty to enforce it. 5. In the sequence of events, we have noted that TDB instituted proceedings under the IBC and this action was challenged by the Appellant in a Writ Petition which came to be admitted by the Court on 12.06.2023. By subsequent common Judgment dated 11.01.2024, the plea of the Appellant along with other MSMEs alleging the recovery proceedings initiated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave perused the Order of the NCLT dated 15.07.2024 on initiation of the proceedings filed by the financial creditor The Technology Development Board as against the corporate debtors i.e. the Appellant. Recording that there is no dispute at the end of the corporate debtor in respect of the loan agreement which granted loan facility of 7.50 lakh, it is noted by the NCLT that out of the sanction letter amount of Rs.450 Lakhs was disbursed by way of two instalments and after realization of second instalment, it was noted that the debtor could not fulfill the conditions of collateral mentioned in the loan agreement but the debtor chose to adopt a plea that the financial creditor failed to disburse the entire loan amount within a reasonable time and therefore she was unable to meet the obligations of the financial creditors. In addition plea of recusal was also raised by the Appellant. However, the contentions raised were specifically negated by the Tribunal by recording as below : "16. Second ground we are clear in our mind that if the judges decide to recuse themselves on the basis of frivolous and baseless allegations it will be a convenient ploy to litigant to choose their own Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 4 (1) of IBC, the Petition came to be allowed resulting into imposition of moratorium with consequential directions. Pertinent to note that the Appellant also filed Writ Petition (L) No.20943 of 2024 raising a challenge to the Notification dated 29.05.2015 and other consequential reliefs against respondent no. 1 as well as the ICICI Bank i.e. Respondent no. 4. After the Orders being passed by NCLT on 15.07.2024 she filed interim application in the aforesaid Writ Petition seeking stay of the Order dated 15.07.2024 passed in the three IAs. On 18.7.2024, the Division Bench of the Court expressing that the statutory remedy is available to the Appellant to approach NCLT under Section 21, dismissed the application. The Appellant also challenged the said Order in three distinct Petitions. In the wake of the Order dated 18.07.2024, the same were directed not to be listed before the same Bench. 11. In the meantime, the appellant instituted Commercial Suit No. 70/2024 in which Interim Application(L) Nos. 2507/24 and 2503/24 were filed, seeking the stay of the order dated 15.07.2024 passed in the Company Petition, for recalling of the order dated 18.02.2024 which has dismissed the IA No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e request. 15. Mr Nedumpara, learned counsel for the appellant, is extremely critical in his attempt to establish a case as according to him there is no clarity on the forum available to a person like the Appellant and he would rely upon the principles "Ubi jus, ibi remedium" i.e. for every wrong there must be a remedy. He posed a question which according to him, was of million dollar as to what is the forum available to the Appellant like the MSME, as if there is no remedy of suit, what is the remedy available when the Appellant is in dire straits only because of breach of contract and malicious action at the hands of the ICICI bank and its officials and also TDB. According to him, the action under the SARFAESI Act is liable to be set aside as the bank is duty-bound to constitute a committee, which was under the obligation to make a meaningful attempt towards the dissolution of stress and in absentia, the appellant cannot be made to suffer the proceedings. Mr Nedumpara has attempted to canvas before us that the Parliament, while enacting the special statute like IBC, SARFAESI, RDB Act, has lost sight of fundamental principle of law as embodied in Section 10 and 11 as well as Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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