TaxTMI 
TaxTMI 
TaxTMI 
2024 (3) TMI 290
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....vocate For the Respondents : Mr. Jayant K. Sud , Sr. Advocate with Ms. Bihu Sharma and Mr. Shashank Singh , Advocates for R-1. Mr. Amar Vivek and Ms. Ritika Gaur , Advocates for RP JUDGMENT ASHOK BHUSHAN , J. This Appeal has been filed by the Suspended Director of the Corporate Debtor challenging order dated 11.07.2023 passed by the Adjudicating Authority (National Company Law Tribunal), Allahabad Bench, Prayagraj by which Section 7 application filed by the Financial Creditor - Piramal Capital and Housing Finance Limited has been admitted. Aggrieved by the order this Appeal has been filed. Brief facts necessary to be noticed for deciding this appeal are : (i) A Loan Agreement was entered between Crystal Facilities Management Private ....
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....other application was filed by the Financial Creditor against the Principal Borrower - M/s Crystal Facilities Management Private Limited being CP (IB) No.439/ND/2022. (vii) In CP (IB) No.59/ALD/2022 notices were issued to the Corporate Debtor. None appeared on behalf of the Corporate Debtor. The Adjudicating Authority passed an order for substituted service on 07.12.2022 against the Corporate Debtor, in pursuance of which, notices were published in the newspapers; Times of India, Lucknow Edition on 13.01.2023 and Amar Ujala, Lucknow Edition on 12.01.2023. Affidavit of service was filed before the Adjudicating Authority by the Financial Creditor. The Adjudicating Authority even after affidavit of service gave further opportunity to the Cor....
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....to pay the outstanding dues which stood invoked on 22.02.2020, which was much before the 10A period. The application was fully maintainable and is not hit by Section 10A. It is submitted that in the Section 7 application, the Appellant has also brought on record the certificate of National E-Governance Services Limited (NeSL) which also prove the default against the Principal Borrower as well as the Corporate Debtor, who was Guarantor of the loan. It is submitted that against the Principal Borrower also Section 7 application was filed which has been admitted by the Adjudicating Authority by order dated 19.01.2023. In proceeding against the Principal Borrower, notice dated 22.02.2020 was referred and relying on the said notice, the Adjudicat....
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....on of notice in the newspapers, the Corporate Debtor did not appear before the Adjudicating Authority and raised any defense. 8. It is also relevant to notice that against the Principal Borrower, Section 7 application has already been admitted where proceedings were initiated relying on notice dated 22.02.2020. The order passed in the CIRP of the Principal Borrower in Section 7 application dated 19.01.2023 has been brought on record by the Appellant in its appeal as Annexure -2. Para 1(v) notices the case of the Financial Creditor where notice dated 22.02.2020 has been noted. Para 1(v) of order dated 19.01.2023 is as follows : "v. That the Applicant / Financial Creditor had issued a recall notice dated 22.02.2020 to the Corporate Debtor,....
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....and the Guarantors named in this notice, to pay the outstanding amount of Rs.37,17,10,172/-(INR Thirty Seven Crore Seventeen Lakhs ten thousand one hundred seventy two) as on (Feb 22, 2020 in your loan account plus other charges and interest accrued till the date of Loan closure, within 7 (seven) days from the receipt of this notice. vii. In the event of your failure to pay the said amount within 7 (seven) days, DHFL will be constrained to initiate appropriate legal proceedings against all of you including enforcement of our rights under the provisions of the SARFAESI Act/ initiate the proceedings under the Insolvency and Bankruptcy Code 2016 and all other Laws, as applicable, for recovery of the amount due and payable under the Loan A/c.....
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....r to initiate proceeding on the basis of notice dated 22.02.2020. Even though subsequent notice dated 12.02.2021 was during 10A period but Recall Notice having been issued on 22.02.2020, the Financial Creditor was entitled to initiate Section 7 proceedings against the Principal Borrower as well as the Guarantors. 12. When we look into the Section 7 application filed by the Financial Creditor, it is clear that claim is founded on Loan Recall Notice dated 22.02.2020 and date of default mentioned in the application was 15.04.2018. The submission of the learned counsel for the Appellant that Loan Recall Notice dated 22.02.2020 was not served on the Appellant does not impress us since the Appellant despite notice by the Adjudicating Authority d....