2021 (11) TMI 1053 - AT - Insolvency and Bankruptcy

Dismissal of Appeal Against Order in CP (IB) No. 10/2021 Upheld; Emphasis on Timely Decisions

Ananta Charan Nayak Versus State Bank of India & Ors.

Ananta Charan Nayak Versus State Bank of India & Ors. - TMI Issues:Admission of appeal against the order dated 26.8.2021 in CP (IB) No. 10/2021 by the Adjudicating Authority under section 7 of the Insolvency and Bankruptcy Code, 2016 (IBC) against the Corporate Debtor M/s. Nayak Infrastructure Private Limited.Analysis:1. Defect in Application:The Appellant challenged the maintainability of the section 7 application by State Bank of India, citing defects in making all directors and guarantors parties in the application. Despite pointing out these defects, no amendment was sought by the Respondent No. 1 or directed by the Adjudicating Authority. The Appellant argued that a defective application should not have been adjudicated upon, as per the proceedings before the Debt Recovery Tribunal and the lack of response to the One Time Settlement (OTS) proposal.2. Compliance with Section 7 of IBC:The Appellant contended that the Respondent failed to comply with the requirements under section 7 of the IBC, specifically regarding the deletion of personal guarantors from the application. However, the Adjudicating Authority noted that an affidavit was filed by the State Bank of India's Chief Manager, requesting the removal of names of personal guarantors, thereby refuting the Appellant's argument on non-compliance.3. Settlement Proposal and Adjudication:The Appellant's submission of an OTS proposal to the financial creditor, pending decision, was cited as a reason for the Adjudicating Authority not to admit the section 7 application. However, the judgment highlighted that the acceptance of a settlement proposal lies within the financial creditor's discretion. The IBC does not allow for proceedings to be delayed based on settlement proposals, emphasizing the need for timely decisions on admission applications.4. Precedent and Intervention:Reference was made to the Innoventive Industries judgment by the Hon'ble Supreme Court, clarifying that the admission of a section 7 application is not barred if identified defects are rectified. The judgment concluded that the Impugned Order did not warrant any intervention, leading to the dismissal of the appeal at the admission stage without imposing any costs.This detailed analysis of the judgment provides insights into the legal arguments presented, the application of relevant provisions of the IBC, compliance issues, settlement proposals, and the application of legal precedents in determining the outcome of the appeal.