TaxTMI 
TaxTMI 
2024 (9) TMI 7
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.... Adjudicating Authority (National Company Law Tribunal), Chandigarh Court-I. Facts including dates and events of both the Appeals being same, it shall be sufficient to refer to facts and pleadings in Company Appeal (AT) (Insolvency) No. 1146 of 2024 for deciding both the Appeals. 2. Brief facts of the case are:- 2.1. Mr. Gursev Singh is personal guarantor of the Corporate Debtor, M/s. Ram Harbi Motors Pvt. Ltd., Ram Hari AXuto's Pvt. Ltd. and Ram Hari Cars Pvt. Ltd. The CIRP against the Corporate Debtor commenced on 14.02.2020 by order of the Adjudicating Authority. Gursev Singh, the Personal Guarantor filed an application under Section 94 of the IBC which was numbered as CP (IB) No. 77/CH/HP/2021. On 06.05.2022, the Adjudicating Authority directed the Applicants/ Appellant to file compliance and eligibility affidavit. Several opportunities were granted by the Adjudicating Authority for compliance. On 01.02.2023, Adjudicating Authority again passed an order directing the Applicant to comply with the provisions of Section 94(4) and 94(5) of the IBC within three weeks. On 01.02.2024, application came before the Adjudicating Authority and by order dated 01.02.2024, Adjudicating ....
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....ority directed the Appellant to file an Affidavit for compliance. Appellant allowed defective application to continue to enjoy the Moratorium which commenced on filing of the application and in spite of several orders passed by the Adjudicating Authority did not cure the defects and Adjudicating Authority ultimately dismissed the application on 01.02.2024. The order dated 01.02.2024 was never challenged by the Appellant and that become final. The restoration application filed being IA No.519 of 2024 was heard and when the Court was not inclined to entertain, Appellant choose to withdrew the said application with liberty to re-file. Withdrawal of the restoration application with liberty to re-file cannot take away the effect and consequences of the order dated 01.02.2024. 7. We have considered the submissions of the Counsel for the parties and perused the record. 8. There is no dispute between the parties regarding sequence of the events. The fact that Appellant filed the application under Section 94 in the year 2020 i.e. 24.09.2020 is undisputed. Punjab National Bank has also filed an Affidavit in this Appeal where it has been pleaded that the Appellant has been misusing the ....
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....3, but the same was not taken on record because of the non-appearance of the petitioner before the Court. As he has not complied with the order in due course of time, the same is not be taken on record. Moreover, he has also stated that the valid AFA of the proposed RP has not been filed yet. It is pointed out by learned counsel for the Respondent- Corporate Bank-IDBI that the mortgaged property of the Petitioner is being put for auction under the provisions of the SARFAESI Act, 2002 but because this interim moratorium has been misused by the petitioner for the last three years and there is no need to adjourn the matter again. In these circumstances, there is no reason to again adjourn the matter for necessary compliance. Thus, the present petition is dismissed for non-compliance. However, we are refraining ourselves from imposing the cost upon the learned counsel for the Petitioner for misuse of the process of law. File be consigned to record room." ( Emphasis placed ) " 11. When we look into the order dated 01.02.2024, it is clear that the order was passed after hearing the Counsel for the Appellant as well as Counsel appearing for the IDBI Bank where it was ....
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.... with liberty to re-file the petition under Section 94(1) of the Code as per law. The aforesaid request was accepted by the Adjudicating Authority, hence, at best the order can be read that refiling was permitted as per law. 15. Adjudicating Authority by the impugned order dated 17.05.2024 relying on earlier order dated 01.02.2024 has held that subsequent application filed by the Appellant was not maintainable. The judgment which was relied by the Appellant in support of the submission was duly noted and has been distinguished. In paragraphs 12 and 13 of the judgment, following was held:- "12. Even if the liberty by this Adjudicating Authority was given to the Applicant to file a fresh Application, we are of the view that this Adjudicating Authority is sufficiently empowered to examine maintainability of an Application. We find that the Applicant herein has preferred a second Application based on the same facts and for the same cause of action, and a complete earlier application No. without bothering to file 77/Chd/HP/2021 either suo moto or pursue the same after complying with the directions given by this Adjudicating Authority vide order dated 06.05.2022 (that were no....