Gay Printers vs Ramesh Kumar Suneja

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI Company Appeal(AT)(Insolvency) No. 1137 of 2020 IN THE MATTER OF: Gay Printers C- 15, Okhla Industrial Area, Phase - I, New Delhi - 110020 ...Appellant

Vs Ramesh Kumar Suneja 59-A, Sainik Farms New Delhi - 110062 ...Respondent

Present: For Appellant: Mr. Sinha Shrey Nikhilesh, Mr. Ardhendumauli Kumar Prasad, Mr. Swastik Verma, Mr. Sarthak Sachdev and Mr. Ashish Madan, Advocates For Respondent: Mr. Piyush Singh, Mr. Akshay Srivastava and Ms. Aditi Sinha, Advocates for Respondent.

JUDGMENT

Jarat Kumar Jain: J.

The Appellant 'Gay Printers' has filed the Appeal against the order dated

03.02.2020 passed by the Ld. Adjudicating Authority (National Company Law

Tribunal, New Delhi) passed in CP12 (ND)/2017 in (IB) No. 301-ND/2017

whereby dismissed the Application under Section 340 of the Cr.P.C filed by

the Appellant.

2. Brief facts of this case are that the Appellant being a Financial Creditor

had filed an Application under Section 7 of the IBC against the Corporate

Debtor (Respondent) on 22.08.2017 before the Adjudicating Authority. The

Corporate Debtor filed their short Affidavit dated 30.08.2017 stated that an

Company Appeal(AT)(Insolvency) No. 1137 of 2020 2

MOU dated 18.05.2015 was entered between the Financial Creditor and

Corporate Debtor whereby the disputed amount to be treated as an advance

in terms of the property deal between the parties and on the basis of non-

fulfilment of the terms of the alleged MOU by the Appellant, the amount was

forfeited by the Corporate Debtor as per the terms and conditions of the

alleged MOU dated 18.05.2015. According to the Appellant he never entered

into such a MOU which is false, forged and fabricated document to evade the

legal debt owed to the Appellant. The Appellant collected information from the

stamp vendor and the Chief Treasury Officer, Gaziabad from where it was

informed that the stamp paper which was used for executing the alleged MOU

was issued by the treasury on 21.08.2017 i.e. after the purported date shown

in MOU. Thus, the Appellant has filed an Application under section 340 of the

Cr. P.C before the Adjudicating Authority that in the interest of justice an

inquiry should be made into any offence referred to in Clause (b) of Sub-

Section 1 of Section 195 which appears to have been committed or in respect

of document which produced in proceeding and may make preliminary

inquiry and record a finding to that effect make a complaint thereof in writing.

3. Ld. Adjudicating Authority after hearing Ld. Counsels for the parties is

of the opinion that the provisions under Section 340 of the Cr.P.C would not

apply to the facts in this case as the MOU did not form the basis of any

adjudication. To initiate prosecution, it is essential that the decision is based

on a fabricated document and the court having relied upon the same has

arrived at an erroneous conclusion. Therefore, held that no inquiry is required

under Section 340 of the Cr.P.C and dismissed the Application. Being

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aggrieved with this order, the Appellant has filed this Appeal alongwith I.A.

No. 3048 of 2020 an Application for condonation of delay in filing the Appeal.

4. In the Application for condonation of delay, it is stated that as per

Section 61 of the IBC the Appellant was required to file the Appeal within 30

days and this Appellate Tribunal may condone further period of 15 days. It is

also stated that Hon'ble Supreme Court of India in Suo Moto W.P. (C) No. 3 of

2020, In Re: Cognizance for extension of limitation vide order dated

23.03.2020 extended the limitation period prescribed under law and order

that limitation prescribed under general law or special law whether

condonable or not shall stand extended with effect from 15.03.2020 till

further orders. In the light of the aforesaid directions till 15.03.2020 there is

a delay of 12 days in filing the Appeal. Thus, the delay may be condoned.

5. Ld. Counsel for the Respondent has filed the Reply of the Appeal as well

as Application for condonation of delay. In Reply the Respondent has raised

a preliminary objection that the Appeal is barred by limitation as the

impugned order was pronounced in open Court on 03.02.2020, therefore,

within 30 the Appeal ought to have been filed by the Appellant till 04.03.2020.

Hon'ble Supreme Court in Suo Moto W.P. (C) No. 3 of 2020 has extended the

prescribed period of limitation with effect from 15.03.2020 and not the period

up to which the delay can be condoned in exercise of discretion conferred by

the statute. For this purpose, he placed reliance on the Judgment of Hon'ble

Supreme Court in the case of Sagufa Ahmed & Ors. Vs. Upper Assam

Company Appeal(AT)(Insolvency) No. 1137 of 2020 4

Playwood Products Pvt. Ltd. & Ors. Civil Appeal Nos. 3007 - 3008 of 2020.

Thus, the Appeal is apparently time barred.

6. It is stated in the Reply that in response to the Section 7 Petition that

was filed by the Appellant Pawan Buildwell duly appeared and filed its

response on 31.08.2017 and annexed a copy of the MOU. However, after

hearing the argument of the parties. The Ld. Adjudicating Authority was of

the view that the Appellant had failed to establish with support of the

document that the financial debt claimed in the Section 7 Petition was payable

to it by Pawan Buildwell. Since, no document was produced by the Appellant

to show that the financial debt was owed to it. Thus, the Appellant could not

come within the definition of the Financial Creditor as defined under the IBC.

Hence, dismissed the Section 7 Petition as not maintainable. The question of

MOU did not form the basis of adjudication of the Section 7 Petition.

Therefore, Ld. Adjudicating Authority has rightly dismissed the Application

under Section 340 of the Cr.P.C.

7. It is stated in the Reply that on 20.02.2018 the Appellant had filed

second section 7 Petition for the same financial debt and the Petition was

admitted on 04.04.2018 and CIRP was initiated against Pawan Buildwell.

While admitting the Section 7 Petition, Ld. Adjudicating Authority has neither

relied upon nor referred to the MOU and the same was never part of

adjudication or basis of decision of the admission of the Section 7 Petition.

8. It is also mentioned in the Reply that the Constitution Bench of the

Hon'ble Supreme Court in Iqbal Singh Marwah and Another Vs. Meenakshi

Company Appeal(AT)(Insolvency) No. 1137 of 2020 5

Marwah and Another (2005) 4 SCC 370 decided on 11.03.2005 held that in

view of the language used in Section 340 Cr.P.C the court is not bound to

make a compliant regarding commission of an offence referred to in Section

195(1)(b), as the section is conditioned by the words, "court is of the opinion

that it is expedient in the interests of justice".

9. It is also pointed out that the Appellant has already filed criminal

complaint on the ground that the MOU is forged and fabricated and by making

wholly incorrect and false statements and police has registered an FIR bearing

no. 218/2018 against the Director of Pawan Buildwell i.e. Mr. Ramesh Kumar

Suneja (Respondent herein). Thus, the Appeal is liable to be dismissed.

10. The Appellant has filed an I.A. No. 519 of 2021 on 18.03.2021 seeking

amendment in the Memorandum of Appeal, however, Ld. Counsel for the

Appellant on 22.03.2021 with the permission of this Tribunal has withdrawn

the aforesaid I.A with the liberty to file a fresh application for amending memo

of appeal. However, the Appellant has not filed any Application for amending

the memo of Appeal.

11. We have heard Ld. Counsels for the parties at length and also gone

through the written submissions filed by them.

12. Firstly, we have considered the Application I.A. No. 3048 of 2020 for

condonation of delay. The impugned order is pronounced on 03.02.2020. In

view of the provisions under Section 61 of the IBC as per prescribed period

the Appeal was required to be filed within 30 days till 04.03.2020. However,

the Appeal was filed on 29.12.2020 i.e. after a delay of 299 days. As per

Company Appeal(AT)(Insolvency) No. 1137 of 2020 6

proviso to sub-Section (2) of Section 61 of the IBC, this Tribunal may condone

the delay for a period not exceeding 15 days. Ld. Counsel for the Appellant

has taken shelter of the order passed by the Hon'ble Supreme court in India

in Suo Moto W.P. (C) No. 3 of 2020, In Re: Cognizance for extension of

limitation vide order dated 23.03.2020 extended the limitation period

prescribed under law. Hon'ble Supreme Court in the case of Sagufa Ahmed &

Ors. (Supra) clarified the order passed in aforesaid Suo Motu Writ Petition No.

3/2020 and held that: "But we do not think that the Appellants can take

refuge under the above order. What was extended by the above order of this

court was only "the period of limitation" and not the period upto which delay

can be condoned in exercise of discretion conferred by the statute"

13. In the light of the Sagufa Ahmed case we have considered the facts of

this case. The impugned order passed on 03.02.2020 and the Appellant was

required to file the Appeal within 30 days i.e. till 04.03.2020. However, in Suo

Motu Writ Petition the period of limitation is extended for the cases in which

the period of limitation expired on 15.03.2020 or thereafter. Whereas in the

present Appeal the limitation is expired on 04.03.2020. Thus, the Appeal is

apparently time barred by 299 days. Thus, the Application for condonation of

delay is dismissed.

14. As we have already heard the arguments on merits, therefore, we have

also examined the merits of the impugned order. Admittedly, the MOU which

alleged to be forged and fabricated document did not form the basis of any

adjudication. Therefore, Ld. Adjudicating Authority has rightly held that the

Company Appeal(AT)(Insolvency) No. 1137 of 2020 7

provisions of Section 340 of the Cr.P.C are not attracted in the facts of this

case. We find no flaw in this finding.

Thus, the Appeal is dismissed as barred by limitation as well as on

merits. No order as to costs.

[Justice Jarat Kumar Jain] Member (Judicial)

(Dr. Ashok Kumar Mishra) Member(Technical)

New Delhi 20th September, 2021.

SC

Company Appeal(AT)(Insolvency) No. 1137 of 2020