TaxTMI 
TaxTMI 
2025 (6) TMI 29
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....llant. Two Appeals are interrelated and, therefore, are being taken up together. An Application No. C.P (IB) No.32/CHD/HRY/2023 Suprio Ghosh Vs. Bank of Maharashtra under Section 94 of the Insolvency and Bankruptcy Code, 2026 ("Code") was filed on 03.12.2022 by the Appellant for initiation of insolvency Resolution Process and similarly another related Application C.P (IB) No.34/CHD/HRY/2023 Nilanjana Ghosh Vs. Bank of Maharashtra was filed. One Mr. Desh Deepak was appointed as the RP for filing of the report under Section 99 of the Code in both the cases. The RP had filed its report under Section 99 for consideration for admission, which is at pages 62 to 66 of the Appeal Paper Book (APB). The Respondent - Bank of Maharashtra had not filed any objections to the report of the RP. 2. Heard Counsels from both sides and also perused material on record. The Appellant contends that the matter was listed before NCLT on various dates, wherein the Appellant was present to press its application for the admission of the report filed by the RP, except for few dates. The list of dates, when the matter was fixed before the Adjudicating Authority is as under : Date Appearance by the A....
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....nce to the counsel opposite. 03.04.2024 Not Appeared Compliance affidavit has been filed by RP vide diary No. 03102/20 dated 01.04.2024. The same is taken on record. Despite clear-cut directions as per last order dated 20.02.2024, the RP has failed to file the report on DMS as well as the physical copy of the report. He is directed to do the same within three days subject to payment of cost of Rs. 5,000/- to the Prime Minister's National Relief Fund. Objections to the report, if any, be filed by learned counsel for the creditor bank within one week with a copy in advance to the counsel opposite. Response thereto, if any, be filed within one week thereafter with a copy in advance to the counsel opposite. 20.05.2024 Not Appeared This application has been filed by the Resolution Professional to place on record the report under Section 99 of the Code. On last date of hearing, cost of Rs. 5000/- was imposed on Resolution Professional for not filing the report. Resolution Professional is directed to place on record the receipt of the payment of cost imposed only then this report filed under Section 99 will be taken on record. In the meantime, a date is requested by ....
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...."6. The petition i.e. CP(IB) No.34/Chd/Hry/2023 was filed on 05.12.2022 and the applicant has not appeared for last three dates (03.04.2024, 20.05.2024, 08.07.2024) consecutively. Under section 94, once the petition is filed with the registry the interim moratorium prescribed under section 96 triggers, which operates in rem and cause prejudice to the creditors of the petitioners. XXX 7. In the instant case, a writ petition was filed by the Respondent Bank i.e. CWP No. 3097 of 2024 titled Bank of Maharashtra v/s District Magistrate Gurugram. The Hon'ble High Court directed District Magistrate of Haryana to pass order under section 14 of SARFAESI Act 2002. We are conscious that the SARFAESI proceedings are stayed by virtue of section 96 of IBC. The filing and non-pursuance of section 94 petition is nothing but the abuse of process of law and needs to be hammered with iron hand. 8. Hence, when section 94 petition is filed by the petitioner then he has to be an extra careful while prosecuting his case. However, the petitioner- applicant herein acted in a casual manner, even the reasons for the non-appearance does not reflect any sufficient cause. Perusal ....
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....n-appearance before the Adjudicating Authority was neither deliberate nor-intentional. It also claims that the Adjudicating Authority has wrongly recorded that the Appellant has failed to appear on three consecutive dates i.e. 03.04.2024, 20.05.2024 and 08.07.2024. It also claims that he was present on 03.04.2024 even though the records show otherwise. The Appellant also claims that it also appeared on 20.05.2024 but failed to mark appearance. But this fact also cannot be corroborated by any subsequent action to correct the mistake in the records. The Appellant claims that it was only on 08.07.2024, that it has failed to appear due to clashing of matters before various courts. It is also contended that the Adjudicating Authority has gone beyond Rule 48 of NCLT Rules, 2016 for deciding the Restoration Application on merits but has gone beyond the facts on record to come to the conclusion that the Restoration Application deserves to be dismissed. On 08.07.2024 the report of the RP was available and the Adjudicating Authority, instead of considering the report filed by the RP has gone beyond the procedure and has held that the Applicant is not interested in pursuing application filed ....
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....een dismissed for default and the applicant files an application within thirty days from the date of dismissal and satisfies the Tribunal that there was sufficient cause for his non-appearance when the petition or the application was called for hearing, the Tribunal shall make an order restoring the same: Provided that where the case was disposed of on merits the decision shall not be re-opened." [ emphasis supplied ] While deciding the appeal herein, on the basis of Rule 48(2) and also facts and circumstances in the case, we will look into the justification provided and test whether there was sufficient cause for non-appearance in the petition, when it was called for hearing. 8. The claims of the Appellant in the affidavit that it was present on 03.04.2024, do not corroborate with the order sheet which has been presented by the Appellant himself at Pg. No. 76 of APB, wherein there is no presence of the petitioner recorded before NCLT, Chandigarh. Similarly, the Appellant's claims that, he was present on 20.05.2024 before the Adjudicating Authority, but the records suggest otherwise. We find that the averments made by the Appellant are not based on facts and....
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....n Process and on 08.07.2024 the Adjudicating Authority was only to consider the report filed by the Resolution Professional. We note that it is the responsibility of the Appellant who has to work out a repayment plan and that he does it proactively and that can happen only if the Appellant is present in the proceedings. With three absents in the court proceedings on frivolous grounds, there is no proactiveness and initiative on the part of the Appellant. 10. The Appellant claims that he was held up before other courts and for that reason could not join the proceedings of NCLT on 08.07.2024. By the time he tried to join the proceedings through Virtual Court, the proceedings had ended. The Appellant also claims that he was ready for the submission of the repayment plan for the settlement of all dues basis the report of the RP. The Adjudicating Authority had to decide the admission or rejection. It was never the intent of the Appellant not to pursue the application for the Initiation of Insolvency Resolution Process. The Appellant was waiting for the order of admission based on the report filed by the RP as no objection on the report was filed by the Respondent Bank. On the other h....