Atharva Auto Logistics Pvt Ltd vs Intec Capital Limited & Anr

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Insolvency) No. 303 of 2022 IN THE MATTER OF: Atharva Auto Logistics Pvt. Ltd. ...Appellant

Versus Intec Capital Ltd. & Anr. ...Respondents

Present: For Appellant: Mr. Sangramsingh Bhonsle, Ms. Samridhi Jain, Nrupal Dingankar and Mr. Satyam Tripathi, Advocates. For Respondent: Mr. Amir Arsiwala, Mr. Piyush Deshpande, Mr. Aabhas Singh, Advocates for R-1. Mr. Akshay Petkar, Mr. Ayush Negi, Advocates for R-2. ORDER

(Virtual Mode) 24.03.2022: Heard Learned Counsel for the Appellant. Learned Counsel for

the Respondent No. 1 and Respondent No. 2 are also present.

2. This Appeal has been filed against the Order dated 18th February, 2022

passed by the Adjudicating Authority (National Company Law Tribunal, Court-

5, Mumbai Bench) in CP No. 1258/MB/I&B/2020. By which Order, Application

being CP No. 1258/MB/I&B/2020 filed under Section 7 of the Insolvency and

Bankruptcy Code, 2016 (IBC in short) by the Respondent No. 1 has been

admitted as well within time.

3. Learned Counsel for the Appellant submitted that in Part-IV of the Section

7 Application, the 'Date of Default' was mentioned as 25th August, 2017 and from

Company Appeal (AT) (Insolvency) No. 303 of 2022 2

25th August, 2017, the Application was barred by time since it was filed on 28th

August, 2020. He further submitted that Adjudicating Authority even after

noticing the aforesaid fact has not adverted to and held that Application is not

barred by time.

4. We have considered the submissions of Learned Counsel for the Parties

and perused the record.

5. The Adjudicating Authority in Paragraph 6 of the Order has made following

observations:

"6. The Petitioner has also filed record of default by the information utility (NESL). The statement of account produced by the Petitioner shows that the last repayment of Rs. 2 Lakhs was made by the Corporate Debtor on 31.07.2018."

6. When the last payment was made on 31st July, 2018, the Application filed

on 28th August, 2020 was well within three years from the last payment. The

submission of the Appellant that Application was barred by time cannot be

accepted. The payment details regarding the payment was already the part of the

Application which has been brought on record along with the Application and

from such details regarding the payment when the Adjudicating Authority has

noticed the submissions that last payment was made on 31st July, 2018, the

Application cannot be said to be barred by time. The default and debt were

proved, on that basis the Application was admitted. We do not agree with the

submissions of the Learned Counsel for the Appellant that Application was

barred by time.

Company Appeal (AT) (Insolvency) No. 303 of 2022 3

7. Learned Counsel for the Appellant has placed reliance on a Judgment of

Hon'ble Supreme Court reported in 2020 (15) SCC 1 in the matter of 'Babulal

Vardharji Gurjar Vs. Veer Gurjar Aluminium Industries Pvt. Ltd. & Anr.' and

submitted that Hon'ble Apex Court has held that the date of default has to be

ascertained on the basis of pleadings in Section 7 Application of the IBC. In the

present case, Part-IV of the Section 7 Application of the IBC, 'Date of Default' is

dated 25th August, 2017 there is no dispute regarding that but along with the

Application the relevant documents including ledger account of the payment

were also brought on record where the last payment made by the Corporate

Debtor has been mentioned on 31.07.2018 and the same has been noticed by

the Adjudicating Authority. In view of the last payment made on 31.07.2018 as

noted above, the Application was well within time and the Financial Creditor

entitled for taking benefit of 3 years period of limitation from the date of last

payment. The Judgment relied on by the Learned Counsel for the Appellant does

not come to any aid to the Appellant in the present case.

In view of the aforesaid, we do not find any merit in the Appeal, the Appeal

is dismissed.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

[Ms. Shreesha Merla] Member (Technical) Basant/nn

Company Appeal (AT) (Insolvency) No. 303 of 2022