TaxTMI 
TaxTMI 
2021 (9) TMI 1246
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....mpugned Order the Adjudicating Authority admitted the Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short 'IBC') filed by the Respondent - 'Samata Nagari Sahkari Patsantha Maryadit'. As the Application under Section 7 was admitted and CIRP initiated, being aggrieved the present Appeal has been filed. 2. The Respondent has filed reply vide Dy. No. 26448. Parties have filed brief written submissions and also made oral submissions. 3. The Appeal claims and it is argued for the Appellant that the Respondent - Financial Creditor is a Cooperative Credit Society registered under Maharashtra State Co-operative Societies Act, 1960. The Corporate Debtor had availed of credit facilities i.e. Working Capital Term Loan of Rs. 5 Crore for expansion of educational institution of the Corporate Debtor. The Financial Creditor granted consortium loan vide sanction letter dated 25.10.2013. Out of the amount sanctioned Rs. 2.25 Crore was disbursed by the Financial Creditor. Rs. 1.75 Crore was disbursed by Shivkrupa Sahakari Padpedhi, Nashikand and balance Rs. 1 Crore was disbursed by Janalaxmi Gramin Bigarsheti Patsanstha Maryadit, Akole. The Corporate Debtor mortgaged ....
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....Annexure A-3 of the Appeal. The Appellant claims that although on 24.11.2020, the Adjudicating Authority directed the Registry to inform the Corporate Debtor the next date of hearing still no Court Notice was issued. Thus, it is claimed that the Corporate Debtor remained unrepresented in subsequent proceedings and impugned order came to be passed on the basis that the Corporate Debtor has filed Reply. Appellant claims in proceedings dated 05.02.2021, Adjudicating Authority recorded that the Corporate Debtor has been served with the notice with date of hearing on 04.04.2020 but according to the Appellant it was not possible as there was nationwide lockdown in the country from 24.03.2020 till 31.05.2020. Thus, Appellant claims that there was violation of Principles of Natural Justice. It is claimed that the Reply filed by the Corporate Debtor was to MA No. 452/2020 and that the Adjudicating Authority wrongly mentioned that the Corporate Debtor has filed Reply to the main Petition. The other ground raised by the Appellant on behalf of the Corporate Debtor is that the date of default in the present matter is stated to be 30.11.2013 and the Company Petition filed on 22.04.2019 should be....
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....nspite of keeping the Corporate Debtor informed the Corporate Debtor did not choose to appear and participate in subsequent proceedings and thus cannot claim any violation of Principles of Natural Justice. The Learned Counsel for the Respondent has relied on the various payments made by the Corporate Debtor from time to time and also relied on the proceedings which took place before the Co-operative Court Authorities and the Recovery Certificate issued under Section 101 of the Maharashtra Co-operative Societies Act and reliance has been placed on the provisions of the Limitation Act and judgments in the matter of "Sesh Nath Singh & Anr. vs. Bidyabati Sheoraphuli Co-operative Bank Ltd. & Anr.", Civil Appeal No. 9198 of 2019 dated 22.03.2021 passed by the Hon'ble Supreme Court of India. It is argued that the claim before the Adjudicating Authority was within limitation and that it has been rightly admitted. 8. As regards the claim of the Appellant that the Principles of Natural Justice were violated, Appellant has filed copies of orders at Annexure A-3. We have gone through the orders. The order dated 27.01.2020 reads as follows: "7. C.P.(IB)-4666(MB)/2019 The counsel for the pe....
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....ard on merits. 4. List this matter on 12.04.2020." [Emphasis supplied] 11. From the above order it is clear that the Adjudicating Authority reiterated that the earlier MA No. 452/2020 was already withdrawn on 07.02.2020 and is wrongly on board and Counsel for the Corporate Debtor sought time to file reply in the main Company Petition. Now in the Appeal, Appellant is harping upon the fact that the reply was to the MA and not to the petition. This deserves to be rejected. If one peruses Annexure A-5 (page 97), it shows that in para 1 of the Reply (see pg. 99 of Dy. No. 26448) although the Corporate Debtor referred to Miscellaneous Application (which was already withdrawn), the Corporate Debtor in para 3 stated that the Appellant was filing this affidavit for the purpose of opposing the Company Petition. In said reply the contentions of the company petition are met for the purpose of opposing the company petition. The reply goes on to answer averments of the petition. The receipt of the loan is admitted. It is stated in Para 6 of the Reply as under: "6. I state that I have intentions to paying the debts of the Petitioner, as even during pendency of section 101 of Maharashtra Co....
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....on 24.11.2020 and the order dated 24.11.2020 shows that the Adjudicating Authority referred to hearings that took place on earlier dates and that the Corporate Debtor had filed reply. The Adjudicating Authority by way of abundant caution directed the Registry to send a court notice to the Corporate Debtor as although the Counsel for Petitioner was present nobody was present for the Corporate Debtor. Thus, if the Counsel for the Petitioner could be present there is no justification why Counsel for the Corporate Debtor was not present. On 08.01.2021 also Counsel for the Petitioner was present but Counsel for the Corporate Debtor did not appear and the Adjudicating Authority adjourned the matter to 05.02.2021. On 05.02.2021, the order of the Adjudicating Authority is as follows: "1. Heard the professional appearing on behalf of the petitioner. There is no representation on side of the Corporate Debtor. 2. However, the Corporate Debtor had appeared earlier and filed their reply and the notice of the date of hearing was duly served upon them on 04.04.2020. 3. Reserved for Orders." 18. Although the Appellant is trying to say that it was not possible that a notice could be served o....
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....tor is as under:- PARTICULARS DATE AMOUNTS IN Rs. DATE OF DEFAULT 30/11/2013 - DATES AND AMOUNT ON WHICH THE INSTALMENTS WAS PAID BY THE CORPORATE DEBTOR REFER PAGE (252-256) OF THE BANK STATEMENT 13/10/2014 13/10/2014 31/12/2014 13/10/2014 09/01/2015 13/10/2014 28/02/2015 13/10/2014 26/03/2015 13/10/2014 11/06/2015 13/10/2014 07/07/2015 13/10/2014 30/07/2015 13/10/2014 03/11/2015 13/10/2014 29/01/2016 11/03/2016 16,20,000.00 22/06/2016 8,10,000.00 16,20,000.00 08/06/2018 20,00,000.00 21. It is clear from the above that though the date of default was 13.11.2013 (sic - should be 30.11.2013) the Petitioner has received payment on various dates in the year 2014, 2015, 2016 and the last date of payment by the Corporate Debtor was on 08.06.2018. Therefore, in accordance with Section 19 of the Limitation Act, 1963, a fresh period of limitation....
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....h the same, and even took possession of the assets, until the entire proceedings were stayed by the High Court by its order dated 24th July 2017. The proceedings under Section 7 of the IBC were initiated on 10th July 2018. 87. In our view, since the proceedings in the High Court were still pending on the date of filing of the application under Section 7 of the IBC in the NCLT, the entire period after the initiation of proceedings under the SARFAESI Act could be excluded. If the period from the date of institution of the proceedings under the SARFAESI Act till the date of filing of the application under Section 7 of the IBC in the NCLT is excluded, the application in the NCLT is well within the limitation of three years. Even if the period between the date of the notice under Section 13(2) and date of the interim order of the High Court staying the proceedings under the SARFAESI Act, on the prima facie ground of want of jurisdiction is excluded, the proceedings under Section 7 of IBC are still within limitation of three years. 88. An Adjudicating Authority under the IBC is not a substitute forum for a collection of debt in the sense it cannot reopen debts which are barred by law....