TaxTMI 
TaxTMI 
2023 (10) TMI 534
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....e Respondent / Petitioner/Operational Creditor) u/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 o....
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....esh Kymal vs. Siemens Gamesa Renewable Power Pvt. Ltd., reported in MANU/SC/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 th....
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....it up to 31.03.2017 so that it may use the payment of Rs. 2.75 Lakh made on 29.03.2017 in the account as acknowledgment 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....
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.... in order dated 26.10.2016 in OP No.127/2016. However, in OSA No. 113/2016 filed by the Appellant's, the Hon'ble High Court of Madras 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$" inste....
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....thor, in pleadings, material facts should be stated 'in a concise form'. The pleadings should be concise as well as precise. Pleadings would include contentions 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 prov....
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.... an applicant to file additional pleadings and/or documents, and proceed to pass a final order. In our considered view, the decision of the Adjudicating Authority to entertain and/or to 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', wh....
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....pographical error crept in, wherein it was mentioned "as Date on which the debt amount fell due - on 23.10.2012" instead of "Date on which the debt amount fell due - on 03.08.2018" and in part IV(2), it was mentioned as "Total amount of debt as on 03.01.2020 = 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". 42. Moreover, the Adjudicating Authority / Tribunal, on 10.06.2022, gave Liberty, in IBA/491/2020 to the Respondent / Petitioner, to prefer an 'amendment' an Application and pursuant to which the IA(IBC)/733/CHE)/2022 in IBA/491/2020 was filed by the Respondent / Petitioner. 43. In the present case, even though, the Appellant / Respondent, had 'come out with the plea' that the amendment in pleadings was sought for by the Respondent / Petitioner in IA(IBC)/733/CHE)/2022 in IBA/491/2020 with the inordinate delay of 2½ years, keeping in mind, of a prime fact, that the 'Amendment', 'in pleadings' is in 'imperative one', for a proper, effective and efficacious adjudication of the controversies, involved in the main IBA/491/2020 on the file of the Adjudicating Authority / Tribunal. Added further, the Adjudicat....
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....vailed by it. He pointed out that whereas the NCLT had, by an order dated 21.11.2019, admitted the appellant's application under Section 7 of the BC; the NCLAT had, vide the impugned judgment, set aside the NCLT order on the round that an entry in a balance sheet cannot amount to an acknowledgement of hability for the purpose of Section 18 of the Limitation Act. As a matter of fact, he argued, in the alternative, that even if dues were stated to be recoverable on and from the loan-recall notice dated 31.10.2002, there were balance sheets right from 2002 up till 2010, followed by various letters from the corporate debtor, which would show a consistent course of acknowledgement of liability, thereby extending limitation until the Section 7 application was filed by the appellant on 24.06.2019. He, therefore, argued that the present appeal be remanded to the NCLAT for decision on the point of limitation. 2. Shri Jayesh Dolia, learned advocate appearing on behalf of the respondents, argued that since service was not effected on the respondents, nobody was present before the NCLT when it passed an ex parte order admitting the Section 7 applica....