National Company Law Appellate Tribunal
Export-Import Bank Of India vs Maneesh Pharmaceuticals Ltd on 6 December, 2023
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL
BENCH, NEW DELHI
Comp. App. (AT) (Ins) No. 1548 of 2023
IN THE MATTER OF:
Export-Import Bank of India & Ors. ...Appellants
Versus
Maneesh Pharmaceuticals Ltd. ...Respondent
Present
For Appellant : Mr. Krishnendu Datta, Sr. Adv. with Palak Nenwani,
Hafeez Patanwala, Riya Hotchandani, Aman Kacheria,
Advocates
For Respondents : Mr. Abhijeet Sinha, Mr. Milan Negi, Advocates
ORDER
(Virtual Mode) Per: Justice Rakesh Kumar Jain (Oral) 06.12.2023: This appeal is directed against the order dated 25.10.2023 by which the Appellant is aggrieved on the ground that the Tribunal instead of admitting the application filed under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') is proceeding with the matter, allowing the Respondent to file additional affidavits despite the fact that it already came a conclusion in the earlier order dated 25.03.2022 that there is a debt and default on the part of the Respondent but the said application was at that time dismissed only on the issue of limitation.
2. In brief, the Appellant filed an application under Section 7 of the Code against the Respondent (Corporate Guarantor) for the resolution of an amount of USD 44,327,301.78 as on 31.03.2019. The application was contested by the Respondent on various grounds including the limitation. The Tribunal after referring to the submissions made by both the parties recorded a finding that 'it is clear to the bench that there is a debt in terms of section 3(11) and there is a default in terms of Section 3(12) of the IBC. However, keeping in view that the date of NPA in respect of all the four loans are between 26.06.2011 to 31.07.2011 and the petition has been filed only on 30.08.2019, the limitation issue is very pertinent in the matter. The Bench has to take a call whether the debt is time-barred or not, in terms of provisions of the limitation act, 1963.
3. Thereafter, the Tribunal dealt only with the issue of limitation and recorded a finding in Para 41 of the impugned order to the following effect 'Therefore, in all, the petition is time barred as it has been filed after more than five years from the date of the final judgment of the London High Court and liable to be dismissed under the Limitation Act, 1963. Accordingly, the bench dismisses the CP No. CP (IB) 3425/MB/2019 filed by the petitioner'.
4. The Appellant challenged the order dated 25.03.2022 passed by the Tribunal by way of an appeal bearing CA (AT) (Ins.) No. 579 of 2022 before this Court in which this Court also recorded a finding in Para 26 to the effect that 'there is no dispute raised regarding the liability of the Corporate Debtor towards the Financial Creditors and the guarantee by the Respondent' and allowed the appeal by its order dated 09.05.2023 holding that the order under challenge is patently illegal.
5. The order dated 09.05.2023, passed by this Tribunal was challenged by the Respondent by way of Civil Appeal No. 4073 of 2023 before the Hon'ble Supreme Court which was dismissed on 04.07.2023 with the following order 'we find no error in the order of the NCLAT dated 09.05.2023 in CA (AT) (Ins) No. 579 of 2022. The appeal is accordingly dismissed. Pending application, if any, stands disposed of'.
6. Thereafter, the Appellant filed an application bearing I.A. No. 2785 of 2023 for revival and restoration of the main petition. In the said application, the following order was passed by the Tribunal on 05.07.2023 which read as under:-
"The above application is filed by the Export-Import bank of India & Ors., applicant for taking the order dated 09.05.2023 passed by the Hon'ble NCLAT in Company Appeal (AT)(Ins) 579 of 2022 and to restore the captioned Company Petition and other consequential reliefs.
The applicant submits that this tribunal had dismissed the Company Petition No. 3425 of 2019 vide order dated 25.03.2022. Thereafter, the applicants assailed the order passed by this tribunal by way of Company Appeal No.579 of 2022 before the Hon'ble NCLAT and thereafter, the Hon'ble Appellate Tribunal vide order dated 09.05.2023 set-aside the NCLT order dated 25.03.2022.
After hearing the submissions of counsel appearing for the applicant, this bench feels that this a fit case for allowing the above application. Accordingly, the above application is allowed taking the order dated 09.05.2023 passed by Hon'ble NCLAT on record and also restoring the main company petition to file. Registry as well as Petitioner are directed to issue notice to the Respondent/Corporate Debtor clearly intimating the next date of hearing. The Petitioner shall file service affidavit along with copy of notice sent to the Respondent, postal receipt, track report, email etc. at least two days before the next date of hearing. Registry is also directed to make available the copy of the notice, postal receipt and track report/acknowledgement before this Bench on the next date of hearing.
Registry is directed to list this matter on 02.08.2023."
7. Thereafter, the following order was passed by the Tribunal on 02.08.2023 which read as under;-
"Mr. Hafeez Patanwala i/b Juris Crop for the Petitioner and Sr. Counsel Gaurav Joshi a/w Adv. Ashish Pyasi, Adv. Mukul Bhagtani, Adv. Princi Jaiswal i/b Dhir and Dhir Associates for the respondent are present. List this matter on 16.08.2023."
8. On 16.08.2023 the following order was passed by the Tribunal which read as under;-
"Mr. Hafeez Patanwala i/b Juris Co., Counsel appearing for the Financial Creditor and Sr. Counsel Gaurav Joshi a/w Adv. Ashish Pyasi, Adv. Mukul Bhagtani, Adv. Princi Jaiswal i/b Dhir and Dhir Associates, Counsel appearing for the Corporate Debtor are present. List this matter on 06.09.2023."
9. On 06.09.2023 the following order was passed by the Tribunal which read as under:-
"Mr. Hafeez Patanwala appearing for the Financial Creditor and Adv. Ashish Pyasi, appearing for the Respondent are present. At the request of the learned counsel appearing for the Respondent, ist this matter on 09.10.2023."
10. On 09.10.2023 the following order was passed by the Tribunal which read as under:-
"1. Adv. Hafeez Patanwala appearing for the Applicant and Adv. Konish Khetan appearing for the Respondent are present.
2. Counsel appearing for the Respondent submits that the Petitioner had filed Section 7 Petition which was dismissed by this Adjudicating Authority and thereafter, the Petitioner took the matter before Hon'ble NCLAT. The Hon'ble NCLAT set aside the order passed by this Adjudicating Authority and thereafter the Corporate Debtor took the matter before Hon'ble Supreme Court. Hon'ble Supreme Court dismissed the said appeal. However, the Corporate Debtor filed review petition.
3. In view of the above, the counsel appearing for the Corporate Debtor seeks time of one week to make his submission.
4. Be that as it may, one last and final opportunity is granted to the Corporate Debtor to make submission.
5. List this matter on 16.10.2023."
11. On 16.10.2023 the following order was passed by the Tribunal which read as under:-
"Ld. Counsel appearing for the Petitioner, Mr. Shyam Kapadia a/w Mr. Aman Kacheria & Mr. Hafeez Patanwala and Ld. Sr. Counsel appearing for the Respondent, Mr. Gaurav Joshi a/w Mr. Ashish Pyasi are present. At the request of the Ld. Sr. Counsel appearing for the Respondent, list this matter on 25.10.2023. Ld. Counsel appearing for the Petitioner fairly did not oppose the request of the Respondent"
12. And lastly the impugned order was passed on 25.10.2023. The Appellant is not only aggrieved because of the proceedings being carried out unnecessarily at the instance of the Respondent and also by the Tribunal instead of admitting the application filed by them under Section 7 of the Code but also because of the act and conduct of the Respondent for seeking permission to file additional affidavits etc especially when the Tribunal had already recorded a firm finding to the effect that there is debt and default both existing in the application on the basis of which the application has to be admitted.
13. On the other hand, Counsel for the Respondent, while defending the impugned order, has submitted that no doubt the application under Section 7 of the Code was initially dismissed on the ground of limitation and the said order was set aside by this Tribunal and they could not succeed in the Hon'ble Supreme Court but the issue as to whether the application has to be allowed (admitted) for the purpose of initiation of CIRP is to be decided by the Tribunal as according to him even if the Tribunal has recorded a finding in para 29 of the order dated 25.03.2022 that there is a debt and default yet the same has to be payable. In this regard, Counsel for the Appellant has argued that once the debt and default is proved which is evident from the findings recorded, the further proceedings is the admission of the application filed under Section 7 of the Code, appointment of the IRP and imposition of moratorium.
14. We have heard Counsel for the parties and after examining the record, are of the considered opinion that this is one such case in which direction has to be issued to the Tribunal to admit the application filed under Section 7 of the Code in view of the findings recorded by the Tribunal in its order dated 25.03.2022 wherein it has been held that the debt and default both are present in this case but the Tribunal did not admit the application only on the issue that the Application was found to be barred by limitation. The question of limitation was taken to the higher court and ultimately it has been proved that the application was within the limitation. In such circumstances, the Tribunal should not have gone in for further investigating on the issue as to whether there is debt and default in the present case for the purpose of admission of the application.
15. Keeping in view of the aforesaid discussion, the present appeal is thus allowed. The Tribunal is directed to admit the application filed by the Appellant on the next date of hearing and pass further necessary orders in accordance with law. Since, we are informed that the case is fixed for today before the Tribunal, therefore, the Tribunal is requested to adjourn the case only for a week so that the order passed by this Court is produced for the purpose of compliance and the parties are directed to appear before the Tribunal on 11th December, 2023.
[Justice Rakesh Kumar Jain] Member (Judicial) [Naresh Salecha] Member (Technical) sheetal/ravi