AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (1) TMI 1815
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....ount. 2. The Corporate Debtor is a Private Limited Company incorporated on 01.12.2011 and duly registered with the Registrar of Companies, Jaipur, having Identification No. U45201RJ2011PTC037210. The registered office of the Corporate Debtor is situated at 59, Mansarovar Colony, Kalwar Road, Jhotwara, Jaipur-302012 (Rajasthan). The authorized share capital of the Corporate Debtor is Rs. 3,01,00,000/- (Rupees Three Crore One Lakh Only) and the paid-up share capital is Rs. 2,81,00,000/- (Rupees Two Crore Eighty-One Lakh Only). The same has been verified from the online database maintained by the Ministry of Corporate Affairs. 3. The details of the transactions leading to the filing of the Company Petition bearing CP No. (IB)-94/7/JPR/2024 as averred by the Financial Creditor are as follows: 3.1. The Corporate Debtor had obtained a loan of Rs. 12,00,00,000/- (Rs. Twelve Crores Only) from Dewan Housing Finance Corporation Limited ('DHFL') vide Sanction letter No. DHFL/2014-15/PF/SN/AG/848 dated 10.09.2014. As per the sanction letter, the Corporate Debtor was required to pay the said loan in 24 equated monthly instalments commencing after 24 months from the date o....
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....mitted by the Resolution Professional. 3.7. Thereafter, during the course of CIRP process of the Corporate Debtor, the locus of the homebuyers was challenged as they were fraudulently depicted as homebuyers while in fact, they were employees of the suspended management. Hence, on objections raised by the office of ED, this Adjudicating Authority vide Order dated 29.07.2024 quashed the CIRP Process and also issued notice under Section 65 of the Code against the Petitioners who portrayed themselves as home buyers. 3.8. The Corporate Debtor undisputedly committed defaults in repayment of the said loan facilities. The Corporate Debtor failed and neglected to pay the overdue amount. The total amount of debt due and payable by the Corporate Debtor as on 31.08.2024 is Rs. 50,34,51,449/- (Rs. Fifty Crores Thirty-Four Lakhs Fifty-One Thousand Four Hundred and Forty-Nine only). 3.9. It was submitted that since prior CIRP against the Corporate Debtor commenced vide Order dated 23.12.2021, there was a moratorium in place and hence the entire period ought to be excluded. Further, it has been submitted that the period from 15.03.2020 till 28.02.2022 also needs to be ex....
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.... 28.02.2022 while the limitation in the instant case had already expired on 05.12.2019. 4.4. The Respondent further contended that the initiation of CIRP against DHFL by Hon'ble NCLT Mumbai vide its Order dated 03.12.2019 has no bearing upon the instant case. Hence, initiation of CIRP of DHFL is an independent and separate legal proceeding and therefore, it would not extend the period of limitation for the Petitioner to file present application. 4.5. The Petitioner further seeks exclusion of time from 23.12.2021 i.e., the date on which this Adjudicating Authority had previously initiated CIRP of the same corporate debtor in another CP (IB) No. 162/JPR/2020 and the moratorium was implemented. It has been mentioned that CIRP of Corporate Debtor under CP (IB) No. 162/JPR/2020 was initiated vide order dated 23.12.2021 and after lapse of three years the Petitioner on 23.02.2024 filed its claim before the Resolution Professional. Evidently, the said claim was filed after expiry of limitation and as such the said claim itself was liable to be rejected. Moreover, the Hon'ble NCLAT is seized of the matter in an appeal bearing CA (AT) (Ins) No. 1785 of 2024 wherein ....
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....iod or not. 8. In order to adjudicate upon the issue of limitation in background of the facts of the instant case it is pertinent to refer to the Judgment of the Hon'ble Supreme Court in the case of New Delhi Municipal Council vs. Minosha India Limited reported in 2022:INSC:486 : [2022] 8 SCC 384 wherein it has been held that: "31. Under the 1BC, by virtue of the order admitting the application, be it under Sections 7, 9 or 10, and imposing moratorium, proceedings as are contemplated in Section 14 would be tabooed. This undoubtedly does not include an application under Section 11(6) of the 1996 Act by the corporate debtor or for that matter, any other proceeding by the corporate debtor against another party. At least there is no express exclusion of the jurisdiction of the Court or authorities to entertain any such proceeding at the hands of the corporate debtor. However, we must not be oblivious to the other provisions as well. Under Section 17, the management of the affairs of the corporate debtor is taken over by the interim resolution professional. The powers of the Board of Directors or the partners of the corporate debtor shall stand suspended and it would be ....
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....s or continuance of pending suits or proceedings against the corporate debtor including proceeding in execution of inter alia, the decree or order of an arbitration panel. So, also the provision prohibits any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002. Still further, the recovery of any property by an owner or lessor in the occupation of the corporate debtor is forbidden. These provisions do not in any manner appear to stand in the way of the corporate debtor instituting or proceeding with a suit or a proceeding against others. Section 60(6) on the other hand excludes the period, during which the Moratorium under Section 14 is in place in computing the period of limitation. An ambiguity is introduced, namely the need to exclude the period of limitation for a suit or an application, at the instance of the corporate debtor when a Moratorium ushered in by an order under Section 14 does not pose any bar against a suit or an application at the instance of the corporate debtor. The....
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....imitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. 12. Thus, it transpires that even if the limitation period resumed after the approval of the Resolution Plan of the DHFL i.e., on 07.06.2021, the Applicant herein would have a limitation period of 90 days from 01.03.2022 as per the directions of the Hon'ble Supreme Court. 13. Further, in the meantime, the present Respondent/Corporate Debtor i.e. M/s. Sanwariyaji Business Ventures Pvt. Ltd. underwent CIRP on 23.12.2021 in a separate petition bearing No. 162/7/JPR/2020. In the meantime, a deed of assignment was entered between Piramal Capital and Housing Finance Limited ('Assignor') and Omkara ARC ('Assignee/present financial creditor/petitioner'). However, on 29.07.2024 the CIRP proceedings against Sanwariyaji Business Ventures Pvt. Ltd. were quashed by this Adjudicating Authority. Thus, during the pendency of the aforementioned Petition, the Petitioner herein could not have filed another CIRP application against the same Corporate Debtor. Further, we cannot lose sight of the fact that the claim filed by the Petitioner was admitted against the Corporate Debtor in the....
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....der quashed the CIRP of the Corporate Debtor in CP(IB) No. 162/7/JPR/2020. 23.09.2024 Date of filing of the instant Application by the Applicant. Since, the Application has been filed within 90 days of the CIRP quashing date i.e., 29.07.2024, the same is within limitation. 16. Before proceeding further, it is incumbent to refer to Section 7 of the Code which clarifies that the Adjudicating Authority upon being satisfied that the default of financial debt has occurred, may order for initiation of CIRP of the Corporate Debtor. The key ingredients of an Application filed under Section 7 of the Code are: (i) there has to be a financial debt and; (ii) there must be a default in repayment of the financial debt. Hence, the Applicant must establish that there is a financial debt and that a default has been committed in respect of that financial debt by the Corporate Debtor. While dealing with an application under section 7, the Adjudicating Authority is not required to consider the question of the dispute between the parties as long as the 'debt' and 'default' is proved. 17. At this juncture, it is relevant to refer to the judgment of the Hon'ble Supreme Cou....
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.... 27. The Adjudicating Authority has clearly acted outside the terms of its jurisdiction under Section 7(5) of the IBC. The Adjudicating Authority is empowered only to verify whether a default has occurred or if a default has not occurred. Based upon its decision, the Adjudicating Authority must then either admit or reject an application respectively. These are the only two courses of action which are open to the Adjudicating Authority in accordance with Section 7(5). The Adjudicating Authority cannot compel a party to the proceedings before it to settle a dispute." (emphasis added) 19. Thus, upon conclusion of the fact that the debt has become due and default has been committed in payment of the same to the Creditor, the Adjudicating Authority has no discretion to refuse the admission of the Application for CIRP of the Corporate Debtor. Similarly, when it is found that the debt has not become due and payable, the Application under Section 7 of the Code can be rejected. 20. The registered office of the Corporate Debtor is located in the State of Rajasthan and therefore the same falls within the jurisdiction of this Adjudicating Authority. In the instant case, there is n....
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....shall be done. ii) Further, as a sequel of admission, moratorium as envisaged under Section 14 of IBC, 2016 is invoked concerning the Corporate Debtor, which will be in vogue during the Corporate Insolvency Resolution Process of the Corporate Debtor. The IRP shall carry out CIRP strictly as per the timelines specified and as envisaged under the provisions of IBC, 2016 in relation to the Corporate Debtor. iii) The said IRP shall act strictly in compliance with the provisions of IBC, 2016 and defray his expenses to be incurred and fees on the account. The Applicant is directed to act in accordance with Regulation 33(1) of the Insolvency and Bankruptcy (Insolvency Resolution Process for Corporate Persons) Regulations, 2016. The Applicant shall deposit a sum of Rs. 2,00,000/- (Rupees Two Lakhs Only) as the fees in the account of IRP within three working days from the date of this order. The IRP shall duly file a status report from time to time appraising this Adjudicating Authority about the progress of CIRP unfolded in relation to the Corporate Debtor. In terms of Section 17 & 19 of IBC, 2016, all personnel of the Corporate Debtor including promoters and Board of Dir....