TaxTMI 
TaxTMI 
TaxTMI 
2021 (1) TMI 187
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....vency and Bankruptcy Code, 2016 (IBC - in short) in C.P. IB-2721/ND/2019 dated 20th July, 2020 (Impugned Order No.1) (Annexure A-1 - Page 34) and against Order dated 17th September, 2020 (Page 34A - Impugned Order No.2) by which Order I.A. No.3491 of 2020 filed by the Appellant in the Petition was dismissed. 2. Impugned Order No.1 is short Order which reads as under:- "Heard the submissions made by the Operational Creditor as well as Corporate Debtor. Annexure A-10 which is affidavit of admission shows that on January 27, 2020, the Director of Three C Shelters Private limited. Mr. Girish Chander Joshi has confirmed that the Corporate Debtor has to pay to the Operational Creditor as per his claim. Therefore, the petition is allowed." Impugned Order No.2 is also short Order which reads as under:- "I.A. No. 3491/2020: Application is without any merit. Hence dismissed." The above Orders have been challenged in this Appeal which was filed on 22nd September, 2020. Due to pandemic, objection regarding limitation of Impugned Order No.1 is ignored. 3. The Appellant claims that it is the largest Financial Creditor of Corporate Debtor and is aggrieved by the admission Order whereby Com....
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....any Appeal (AT) (Ins) No.388 of 2020. Respondent No.2 exited rigours of CIRP only on 13th March, 2020 and thus 12 months were not over as required by Section 11(b) of IBC. 5. The Appellant further claims and it is argued that the Impugned Order of admission is perverse as no reasons have been recorded and it is mechanical admission Order. The Appeal points out (para - 8(ii)) that Respondent No.1 - Corporate Debtor who was under obligation to deliver the units to the Appellant in timely manner completely failed to do so. According to the Appellant, the Appellant had filed I.A.No.3491 of 2020 to bring the facts to the notice of Adjudicating Authority. The Adjudicating Authority failed to appreciate that there was collusion between the Respondents which was highlighted in the I.A. No.3491 of 2020. The Adjudicating Authority should have invoked Rule 11 of National Company Law Tribunal Rules, 2016 and invoked inherent powers to investigate the case which was made out by the Appellant. The prayer in Appeal is to set aside both the Impugned Orders and to take action against the Respondents. Prayer (d) states that this Tribunal should direct initiation of CIRP on a project-wise basis as p....
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....reference has been made to Section 7 of IBC which was error apparent as the Order refers to submissions made by Operational Creditor. (This and other mistakes in Order Adjudicating Authority corrected later on 14.10.2020 vide Annexure R-5 filed by Respondent No.1 with Reply). 8.4 One Sumita Gogoi Hazarika and another filed I.A. No.2970/2020 in IB No.2721/2019 and there was an Order passed on 27.07.2020 (Annexure 3 colly - Reply of R-1 - Diary No.23486). The said Order shows that, that Application was filed with reference to the present admission Order dated 20th July, 2020 and had come up before another Bench which observed and indicated that clarification and detailed Order was required to be considered as submitted by the Counsel for the Applicant. The Bench directed to place the matter before Bench which had passed Order dated 20th July, 2020. 8.5 On 6th August, 2020, the Appellant filed I.A. 3491/2020 in CP(IB) No.2721/2019. Copy of the Application is at Annexure A-4 - Page 57. It is stated that I.A. filed by Sumita was also similar. 8.6 On 17.09.2020, the I.A. No.3491/2020 filed by the Appellant came to be dismissed as without merits. However, I.A. No.2970/2020 filed by Sum....
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....nexure R-6 - Reply of R-1) recording that vide Order dated 20th July, 2020, the Petition (2721/2019) was allowed and the Order which was now being passed (on 16.10.2020) shall be read along with the Order dated 20th July, 2020 and Order dated 14th October, 2020. This Order dated 16th October, 2020 recorded reasons with regard to the operational debt, default and that Rajeev Baisoya duly authorized by the Corporate Debtor had filed Affidavit on 5th March, 2020 with e-mail dated 27th January, 2020 sent by Mr. Girish Joshi, Director of the Corporate Debtor admitting the dues. Further consequential directions were also issued with regard to appointment of IRP. 8.13 On 21st October, 2020, Appellant filed I.A. 2547/2019 claiming that the stay Order dated 15th October, 2020 passed by this Tribunal was conveyed to the staff of the Adjudicating Authority but still the detailed Order dated 16th October, 2020 came to be passed and that the Order dated 16th October, 2020 should be set aside. The I.A. sought action against IRP also. Alleged Collusion 9. We have heard Counsel for the parties. Counsel for the Appellant has made submissions on the above lines and wants the Impugned Orders to be....
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....r can assign their debt, the same is not applicable to a Corporate Debtor. Thus no such defence can be taken to show existence of dispute. As such, even if Respondent No.2 had taken defence in earlier proceeding IB No.1071/2019 (where the Respondent No.2 was a Corporate Debtor), that it had assigned its debt to principal employer, that defence would have to be ignored. The claim of the Appellant trying to build a case of collusion and fraud is thus not appealing to us. Even if Respondent No.2, a Corporate Debtor had debts to pay of M/s. Guptaji, it can have debt of its own to recover from Respondent No.1 who is another Corporate Debtor. CIRP against Respondent No. 1 maintainable 11. The other averment of the Appellant is that CIRP against Respondent No.1 alone would not be feasible without joining Orris Infrastructure Pvt. Ltd., now needs to be looked into. Although the Appellant claims (see para - 7.4) that there should be group insolvency of Respondent No.1 along with Orris Infrastructure, when there is no pending CIRP against Orris Infrastructure, such claim has got no substance. Orris Infrastructure has itself filed Application seeking intervention pointing out proceedings wh....
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....first instance itself. We are aware NCLT is overburdened. Still such procedure to pass Orders, as in the present matter, should be avoided. 13. The grievance of the Appellant appears to be that it was the biggest Financial Creditor and instead of acting on its Application, the Application of Respondent No.2 was admitted. Prayer - d of the Appeal also indicates that the Appellant also wants CIRP proceedings against the Respondent No.1 - Corporate Debtor. The IRP of Respondent No.1 has with Diary No.24141 filed list of Company Petitions which were moved by stakeholders including home buyers against the present Respondent No.1 - Corporate Debtor. It is a list of 22 petitions in which it appears that the Appellant also had filed CP No.1335 of 2019. Sumita Gogoi who filed I.A. 2970/2020 in this matter was another Petitioner with CP No.503/2019. Intervener - Dhruv Verma in I.A. 2605/2020 also wants the CIRP to continue. Even if we set aside Impugned Order, there are others waiting against Respondent No.1 Corporate Debtor. When Respondent No.2 as Operational Creditor filed Petition/Application under Section 9 of IBC, the only consideration for Adjudicating Authority was to examine if the....
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....process under this Chapter, namely:- (a) a corporate debtor undergoing a corporate insolvency resolution process; or (b) a corporate debtor having completed corporate insolvency resolution process twelve months preceding the date of making of the application; or (c) a corporate debtor or a financial creditor who has violated any of the terms of resolution plan which was approved twelve months before the date of making of an application under this Chapter; or (d) a corporate debtor in respect of whom a liquidation order has been made. Explanation.-For the purpose of this section, a corporate debtor includes a corporate applicant in respect of such corporate debtor." If the Section is perused, the incompetency attached is to initiation. Specified person is not "entitle" to make an application. Thus, the bar under Sub-Section (a) is for making an application when the person who is a Corporate Debtor is undergoing Corporate Insolvency Resolution Process. Under Sub-Clause (b), the bar is to "making an application" by the person - Corporate Debtor having completed CIRP twelve months preceding the date of making of the application. Based on this, the grievance of the Appellant ....