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2023 (10) TMI 534
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..../s 60(5) of the I&B Code, 2016) the Adjudicating Authority / Tribunal, at paragraph No. 4 had observed the following:- "4. Heard the submissions made in detail. This Tribunal is of the view that the amendment as prayed for by the Applicant is necessary in the interest of natural justice. Further, it is seen from this Tribunal order dated 10.06.2022 in IBA/491/2020 that liberty was granted to file an amendment application and in accordance to the same, this present application has been filed." and resultantly, allowed the 'Application', by permitting the Respondent / Petitioner/Operational Creditor, Part-IV of Form-A, within 7 days, from the date of pronouncement of this order, and file the necessary 'amended copy', with the Registry, of this Tribunal". Appellant's Contentions 3. According to the Learned Counsel for the Appellant / Respondent/Corporate Debtor, the Respondent/Petitioner/Operational Creditor, had originally issued a 'Demand Notice' dated 25.09.2019, to the Appellant and in fact, the Respondent / Petitioner/Operational Creditor, had not mentioned the date when the default took place, being a mandatory one, for any petition/application seeking to initiate 'Insolven....
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....0061/2021 wherein at paragraph 10, it is observed as under:- "10. Sub-section (1) of Section 8 of IBC stipulates: 8. Insolvency resolution by operational creditor.- (1) an operational creditor may, on the occurrence of a default, deliver a demand notice of the unpaid operational debt or a copy of an invoice demanding payment of the amount involved in the default to the corporate debtor in such form and manner as may be prescribed. Under Section 9(1), the operational creditor may file an application before the Adjudicating Authority for initiating the Corporate Insolvency Resolution Process ("CIRP"), after the expiry of a period of ten days from the date of delivery of the notice (or invoice demanding payment) Under Sub-section (1) of Section 8, if the operational creditor does not receive payment from the corporate debtor or a notice of the dispute Under Sub-section (2) of Section 8. The Appellant having specified 30 April 2020 as the date of default, this appeal must proceed on that basis. It is necessary to make this clear at the outset because an attempt has been made during the course of the submissions by Mr. Neeraj Kishan Kaul, learned Senior Counsel appearing on behalf....
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....cknowledgment under Section 19 of the Act in order to gain further period of three years from that date i.e. 29.03.2017 till 29.03.2020 to bring the application filed under Section 7 of the Code on 18.10.2019 within the period of limitation. 19. The first question is as to whether the date of default can be changed by the Bank? In this regard, it has been held by the Hon'ble Supreme Court in the case of 'Ramesh Kymal Vs. Siemens Gamesa Renewable Power Pvt. Ltd., (2021) 3 SCC 224' that the date of default cannot be changed. It has also been held in the case of Laxmi Pat Surana (Supra), Babulal Vardharji Gurjar (Supra), B.K Educational Services Pvt. Ltd. (Supra) and Jignesh Shah (Supra) that the period of limitation would be attracted from the date when the default occurs and not from the date of declaration of NPA. Therefore, the date of NPA cannot be taken to be the date of default for the purpose of limitation." 12. The Learned Counsel for the Appellant, submits that the Adjudicating Authority / Tribunal, had not considered any of the 'judgements', relied on by the Appellant's side. However, the Adjudicating Authority / Tribunal, had referred to the 'judgements', cited by the R....
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....s has confirmed the order passed in OP No.127/2016. The Hon'ble Supreme Court in SLP No.19112/2018 on 03.08.2018 had passed an order of dismissal, whereby, the 'Award' dated 21.09.2016, was confirmed and became an enforceable one. 17. The Respondent / Petitioner in IA(IBC)/733(CHE)/2022 in IBA/491/2020 had mentioned that in Form-5 in Part IV, the 'date of default' was mentioned as 03.08.2018, being the 'date of dismissal', of the SLP No.19112/2018, filed by the Appellant / Respondent. 18. Furthermore, although, these details were captured in the pleadings, but inadvertently has 'typographical' error crept in as the 'date of default' was not clearly mentioned in Part-IV(1)(b) in Form-5, as per Rule 6 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rule, 2016. By an inadvertence, it was mentioned that: "Date on which the debt amount fell due - on 23.10.2012" instead of "Date on which the debt amount fell due - on 03.8.2018" and in Part IV(2) it was mentioned as "Total amount of Debt as on 31.01.2020 = 9,54,825.24 US$" instead of "Default amount as on 31.01.2020 = 9,54,825.24 US$: Date of Default - 03.08.2018". 19. According to the Respondent / Petitioner, ....
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....ns raised in Application, Counter, Appeal, Reply, Rejoinder. 19. Keeping in view the principles with regard to pleadings, it would be necessary to see if in the Application or reply filed, issue with regard to limitation was raised and if the same was considered and discussed along with the documents so as to arrive at a decision." 23. Before the Adjudicating Authority / Tribunal, the Appellant / Respondent / Corporate Debtor had averred that the Respondent / Petitioner, as an 'afterthought', is seeking to amend the Part IV of Form 5 and nearly after 2½ years, from the date of filing of main IBA/491/2018. 24. It is the stand of the Appellant / Respondent, that the 'Petitioner' had filed IBA/491/2020 dated 16.03.2023, before the Adjudicating Authority / Tribunal and prior to the filing of the said Application, a Demand Notice, in Form 3 dated 25.09.2019 was issued by the Respondent / Petitioner. A mere perusal of the said 'Demand Notice', would reveal the fact that the Respondent / Petitioner, had not proved his case, as to when the purported sums claimed from the Appellant / Respondent became due and payable. Indeed, the Respondent / Petitioner conveniently, had not ment....
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....allow the request of the Appellant Bank for the filing of additional documents with supporting pleadings, and to consider such documents and pleadings did not call for interference in appeal." 30. Before the Adjudicating Authority / Tribunal, the Appellant / Respondent, had prayed for dismissal, of the IA(IBC)/733(CHE)/2022 in IBA/491/2018, because of the fact that 'amendment of pleadings' was sought for, with an inordinate delay of 2½ years. 31. It must be borne in mind that 'Amendments' are allowed in 'pleadings' to avoid, uncalled for 'multiplying of litigations' as per decision of Hon'ble Supreme Court in B.K-Narayana Pillai vs Pararneswaran Pillai (2000) 1 SCC 712. 32. All amendment, ought to be allowed, if the twin conditions are satisfied (i) of not working injustice to other side; (ii) of being necessary, for the purpose of determining the real questions in controversy between the parties. 33. There is no rule limiting 'amendment' to 'accidental' errors. An 'amendment', which is necessary for the just decision of a case can be allowed. Also that, an 'amendment', in 'general', is not to be refused, in a mechanical and casual manner. In fact, the 'pleadings' can be....