2022 (10) TMI 639

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....s Act, 1956 having its registered Office at C-3/260, Janakpuri New Delhi West Delhi-110058, which is within the jurisdiction of this Tribunal. That the Authorized Share Capital of the Respondent is Rs. 20000000/- and Paid-up Share Capital is Rs. 19900000/- as per the Master Data of the Respondent. 3. During the course of preliminary hearing, it was submitted by the Applicants that they have filed the present Application on the basis of the Recovery Certificate passed in their favour by the District Magistrate, Gurugram under the Haryana Protection of Interest of Depositors in Financial Establishment Act, 2013. 4. Ld. Counsel for the Respondent appeared on the advance notice and vehemently opposed the Application on the ground that neither the Applicant is the Financial Creditor nor the respondent is a Corporate Debtor in the instant case. It was added that the District Magistrate, Gurugram is only empowered to pass an attachment order under the provisions of Haryana Protection of Interest of Depositors in Financial Establishment Act 2013, and not any order for recovery. 5. Ld. Counsel for the Respondent further contended that the identical issue has already been decided by....

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.... the corporate debtor is based on the Certificate of Recovery dated 12.12.2018 passed by the District Magistrate, Gurugram. In this regard, the Applicants have relied on the Judgment of August 4, 2021 passed in the matter of Dena bank (Now Bank of Baroda) vs. C. Shivakumar Reddy and Anr. in Civil Appeal No. 1650 of 2020, wherein the Hon'ble Supreme Court has held that the Judgment or Decree for money in favour of the Financial Creditor passed by the DRT or any other Tribunal or Court or the issuance of certificate of recovery in favour of the Financial Creditor would give rise to a fresh cause of action to the Financial Creditor to initiate proceeding under Section 7 of IBC, 2016 for initiation of CIRP within 3 years from the date of Judgment/or Decree or issue of certificate of recovery if the dues of the Financial Creditor/Creditor under the Judgment or Decree or in terms of certificate of recovery or any part thereof remains unpaid 6.5. Since, the Respondent has failed to pay the debt in accordance with the Recovery Certificate issued by the District Magistrate, Gurugram., in view of the default committed by the Corporate Debtor, the present Application has been filed und....

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....e depositors of such financial establishment, after giving an opportunity of hearing and recording reasons in writing, issue an order by publishing it in the Official Gazette, for attaching the money, property or assets belonging to or believed to have been acquired by such financial establishment either in its own name or in the name of any other person from and out of the deposits collected by the financial establishment, or if it transpires that such money or other property or assets, is not available for attachment or are not sufficient for repayment of the deposits, may order attachment of such other property or assets of the said financial establishment or the personal assets of the promoters, partners, directors, managers, members or any other person of the said financial establishment, as the District Magistrate may deem fit." 7.3. The Section 4 of the Haryana Protection of Interest of Depositors in Financial Establishment Act, 2013 empowers the District Magistrate only to pass an order of attachment but not for recovery of money. Therefore, the order passed by the District Magistrate cannot be construed to be either a judgment or a Decree for money or a certificate of r....

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....s in Financial Establishment Act, 2013 clearly stipulates that the District Magistrate is empowered to pass only an order of attachment and he cannot pass any order for recovery of the money. We have also perused the orders passed by the District Magistrate which clearly shows that an order of attachment has been passed in terms of Section 4 of the Haryana Act. In view of the aforesaid reasons, we are of the view that the Applicant has failed to make out a case under Section 7 of IBC, 2016. We accordingly dismiss the Application as not maintainable." 10. We would further like to refer to the order of the District Magistrate, Gurugram which has been relied upon by the Applicants. The relevant extract of the order dated 12.12.2018 is reproduced overleaf: 11. At this juncture, we would like to refer to the judgment of the Hon'ble NCLAT dated 30.08.2022 in Company Appeal (AT) (Insolvency) No. 968 of 2022 Agarwal Agencies Pvt. Ltd. & Ors. Vs Dove Infrastructure Pvt. Ltd., which is reproduced below: "6. The mere fact that in Clause (A), as extracted above, M/s. Dove Infrastructure Private Limited is to set up IT. Park does not make the disbursement ma....