Export-Import Bank Of India vs Maneesh Pharmaceuticals Ltd

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