TaxTMI 
TaxTMI 
TaxTMI 
2020 (3) TMI 1105
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....pany Application for the sake of convenience. The Appellant has questioned the validity of the impugned order, specifically relating to the following observations: "The Petitioner has not explained the reasons as to why it has not prosecuted the judgment and decree it obtained as early as 2015 till now and as to why it has selectively chosen only the 'Corporate Debtor' herein leaving the personal guarantors, the principal borrower". Appellant further contends that Section 7 of the I & B Code, is solely rejected on the ground that the Respondent had filed an "Application seeking review of the judgment and decree dated 22nd May 2015 and 06th August 2015 passed by the Hon'ble Delhi High Court in CS (OS) No.1030/2012". The Learned Adjudicating Authority was misled into believing the above made contention of the Respondent; whereas the truth of the matter is that there is no such Application for Review pending before the Hon'ble Delhi High Court. Brief facts of the case are that the Plaintiff/Appellant filed an Application under Section 7 of the I & B Code in furtherance of the judgment and decree dated 22nd May 2015 and 06th August 2015 respectively, passed by the Hon'ble Delhi Hi....
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....f Principal Borrower and surety/guarantor is joint and several and thus Lender can choose action against principal borrower or surety either separately or jointly. However, in the instant case, as stated above, the Petitioner had already filed a suit before the Hon'ble Delhi High Court against Principal Borrower and other individual guarantors and also the present Corporate Debtor/Corporate Guarantor, and obtained consent Decree, against the Principal Borrower, personal Guarantors and the instant Corporate Debtor. However, the consent decree is stated to be under review. The Petitioner has not explained the reasons as to why it has not prosecuted the judgment and Decree it obtained as early as 2015 till now and as to why it has selectively chosen only the Corporate Debtor herein leaving other personal Guarantors, the principal borrower. It is settled position of law that Law of Limitation would apply to proceedings under the Code. The Adjudicating Authority has raised the question as to why it has not prosecuted the judgment and Decree it obtained as early as 2015. The observation of the Learned Adjudicating Authority in the impugned order shows that the Adjudicating Authority had....
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....back on 17th December 2018, no fresh Review Application was filed before the Hon'ble High Court of Delhi. The Learned Counsel for the Appellant contends that the Corporate Debtor misled the Adjudication Authority that the Review Application was pending before the Hon'ble High Court of Delhi and based on that, the application filed under Section 7 of the Code has been rejected. It is pertinent to mention that the Adjudicating Authority stated in its order that, "It for the petitioner to take steps to execute the Decree, as it is contending the order and decree in question became final and obtaining a decree from competent Court and also not placed any material to show what steps it has taken about Review pending, and filing the instant petition invoking provision of the code, after a lapse of a long time are nothing but abusing of the process of law." It is pointed out that the Adjudicating Authority has rejected Review Application mainly on the ground that Review petition is pending before the Hon'ble High Court and the Adjudicating Authority cannot interfere with the powers of the Hon'ble High Court of Delhi. It is also noted by the Adjudicating Authority that "the Petitioner ha....
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....it cannot be dismissed on the ground that applicant should have taken steps for filing execution case in Civil Court. It is further noted that the 'Corporate Debtor' misled the Adjudicating Authority about the pendency of Review Application despite the fact that no review application was pending before the Hon'ble High Court against the decree passed by the Court. Therefore, the above finding of the Learned Adjudicating Authority is not sustainable. The Adjudicating Authority has further observed that "the instant Company Petition suffers parallel proceedings as suit was filed against the Principal Borrower and Guarantors namely Mr M.V. Muralidhar as Managing Director and Guarantor, Mrs Padma Muralidhar and Ms Sowmya Muralidhar as another Guarantor apart from the instant Corporate Guarantor and invoking provisions of the Code only against the Corporate Debtor is not tenable. The Company Petition under the principle of double jeopardy as Corporate Debtor has already suffered judgment and decree and the same is sub-judice before the Hon'ble High Court of Delhi. Hence, the Company Petition is liable to be dismissed without prejudice to rights of Petitioner in the pending case befor....
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....crued for the first time on 06th August, 2015 when the Application of Respondent seeking an enlargement of time has been dismissed and the entire suit amount had been decreed or in the alternative the right to apply accrued on 07th July, 2015 when the Respondent defaulted to make the first instalment of Rs. 1 crore. Admittedly, the Application under Section 7 of the I & B Code was filed on 27th June, 2018 i.e. well within three years of limitation calculated from 06th August, 2015 or 07th July, 2015 as the case may be. It is also made clear that for the purpose of the Article 136 of the Limitation Act i.e. for execution or for purpose of Article 137 of the Limitation Act i.e. for filing Application under Section 7 of the I & B Code, the period of limitation is to be calculated from the date of decree becoming enforceable. As per the judgment of Hon'ble Supreme Court in B.K. Educational Services Private Limited Vs. Parag Gupta & Associates in para 27. Hon'ble Supreme Court has held that Article 137 of the Limitation Act to will apply to the proceedings filed under Section 7 of the I & B Code. The right to apply for filing Application under Section 7 of the I & B Code would arise upo....