Binay Sarawgi vs Swastik Fruits Products Ltd. Through ...

Binay Sarawgi ...Appellant

Versus

M/s. Swastik Fruits Products ltd. Through the Interim Resolution Professional ...Respondent

Present: For Appellant : Mr. Ritesh Khare and Mr. Sidharth Bansal, Advocates

For Respondent : Ms. Pooja Bahry, Resolution Professional

ORDER

15.10.2019 The Respondent - 'International Asset Reconstruction

Company Private Limited' (Financial Creditor) filed an application under Section

7 of the 'Insolvency and Bankruptcy Code, 2016' (for short, 'the I&B Code') for

initiation of 'Corporate Insolvency Resolution Process' against 'M/s. Swastik

Fruits Products Limited' (Corporate Debtor). The Adjudicating Authority

(National Company law Tribunal), Bench III, New Delhi by impugned order dated

6th September, 2019 having admitted the application, which has been challenged

by the Appellant - Director/Shareholder of the 'Corporate Debtor'. Learned

counsel for the Appellant submits that the last instalment was paid by the

'Corporate Debtor' on 12th February, 2016 but subsequently the Respondent

asked the 'Corporate Debtor' to pay the amount to the extent of

Rs.17,72,70,466.98. Having defaulted to pay the amount, the 'Financial Creditor' filed an application under Section 7 of the 'I&B Code', which according

to the Appellant is barred by limitation.

2. In the present case, we find that the 'Financial Creditor' passed an order

for recalling the loan in April, 2016 and subsequently filed the application under

Section 7 of the 'I&B Code' on 28th March, 2019, we hold that the application

under Section 7 is well within the time and not barred by limitation.

3. Ms. Pooja Bahry, Interim Resolution Professional (Now 'Resolution

Professional') submits that the 'Corporate Insolvency Resolution Process' is going

on and if the Appellant intends to settle the matter, he may move the application

under Section 12A of the 'I&B Code'.

4. In the facts and circumstances though we are not inclined to interfere with

the impugned order dated 6th September, 2019 but give liberty to the Appellant

to take advantage of Section 12A of the 'I&B Code' before approval of any

'resolution plan'.

The appeal stands disposed of with aforesaid liberty.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice A.I.S. Cheema ] Member (Judicial)

[ Kanthi Narahari ] Member (Technical) /ns/gc

//2 // Company Appeal (AT) (Insolvency) No. 1027 of 2019