2021 (3) TMI 718 - AT - Insolvency and Bankruptcy

Appeal dismissed under Insolvency & Bankruptcy Code, liberty to raise Limitation plea. Fair arguments directed.

The Appellate Tribunal found the appeal under Section 61(1) of the Insolvency & Bankruptcy Code, 2016 not maintainable. Despite this, liberty was ... Maintainability of application - initiation of CIRP - default on the part of Corporate Debtor in repayment of an amount together with the agreed rate of interest, to Financial Creditor - existence of Operational Debt or not - HELD THAT:- Although, this ‘Tribunal has held that the instant Company appeal on the file of this Appellate Tribunal is not maintainable in Law, yet it grants liberty to the Appellant/Applicant/Corporate Debtor to raise the plea of ‘Limitation’ in main Section 7 Application IB No.IBA/46/KOB/2019 filed under ‘Insolvency & Bankruptcy Code’, being a “question of Fact and Law”. It is open to the Appellant’s side to raise a plea of veracity/admissibility of “True extract of Statement of Accounts” maintained by the ‘Respondent/Corporate Debtor” as made mention of in the “impugned Order’ of the ‘Adjudicating Authority’ in KERALA AYURVEDA LIMITED VERSUS TATA GLOBAL BEVERAGES LIMITED [2021 (1) TMI 615 - NATIONAL COMPANY LAW TRIBUNAL KOCHI BENCH], in which event, the ‘Adjudicating Authority (National Company Law Tribunal, Kochi Bench, Kerala) shall permit the ‘Appellant/Applicant/corporate Debtor in this regard. Application disposed off. Issues Involved:1. Maintainability of the appeal under Section 61(1) of the Insolvency & Bankruptcy Code, 2016.2. Interpretation of the Impugned Order dated 12.1.2021 in IA No.80/KOB/2019 in IB No.IBA/46/KOB/2019 by the Adjudicating Authority.3. Consideration of the plea of Limitation and True extract of Statement of Accounts in the main Section 7 Application IB No.IBA/46/KOB/2019.4. Permission to file a detailed reply/response/counter to the main Section 7 Application.5. Granting liberty to raise the plea of Limitation in the main Section 7 Application despite the appeal being not maintainable.6. Directions for both parties to present factual and legal pleas before the Adjudicating Authority in a fair and just manner.Analysis:1. The Appellate Tribunal examined the maintainability of the appeal under Section 61(1) of the Insolvency & Bankruptcy Code, 2016. The Tribunal found that the appeal was not maintainable in law, as per the provisions of Section 61. The Learned Counsel for the Appellant sought to raise the pleas of Limitation and the aspect of the True extract of Statement of Accounts. However, the Tribunal held that the appeal was not maintainable, ultimately dismissing the appeal.2. The Tribunal reviewed the Impugned Order dated 12.1.2021 in IA No.80/KOB/2019 in IB No.IBA/46/KOB/2019 by the Adjudicating Authority. The order highlighted an acknowledgment in the records of the Financial Creditor regarding the period of non-payment and the last date of payment received. Based on these observations, the application was dismissed by the Adjudicating Authority.3. Despite the appeal being deemed not maintainable, the Tribunal granted liberty to the Appellant to raise the plea of Limitation in the main Section 7 Application IB No.IBA/46/KOB/2019. The Appellant was also allowed to challenge the veracity/admissibility of the True extract of Statement of Accounts maintained by the Respondent/Corporate Debtor. The Adjudicating Authority was directed to permit the Appellant to raise these issues.4. The Tribunal permitted the Appellant to file a detailed reply/response/counter to the main Section 7 Application. It was emphasized that both parties should have the opportunity to present factual and legal pleas before the Adjudicating Authority in a fair and just manner. The Adjudicating Authority was instructed to provide adequate hearing and pass a reasoned order on merits, uninfluenced by the Tribunal's observations.5. With the outlined observations and directions, the Tribunal disposed of the instant appeal. No costs were awarded, and certain applications were closed. The Appellant was directed to file a certified copy of the Impugned Order within a specified timeline.