Industrial Promotion And ... vs Ores Ispat Private Limited

NATIONAL COMPANY LAW APPELLATE TRIBUNALPRINCIPAL BENCH, NEW DELHI Comp. App. (AT) (Ins) No. 1122 of 2023 & I.A. No. 3909, 3910 of 2023 IN THE MATTER OF: Industrial Promotion and Investment Corporation of ...Appellant Odisha Ltd. Versus Ores Ispat Pvt. Ltd. ...Respondent Present: For Appellants : Mr. Shubhranshu Padhi, Mr. Jay Nirupam, Adv. For Respondent : Mr. Anirudh Wadhwa, Mr. Debarshi Chhkraborty, Adv. ORDER

Per: Justice Rakesh Kumar Jain (Oral) 13.03.2024: This appeal is directed against the order dated 26.06.2023

passed by the Adjudicating Authority (National Company Law Tribunal) by

which an application filed by the Appellant (Financial Creditor) under Section

7 of the Insolvency and Bankruptcy Code, 2016 (in short 'Code') r/w Rule 4

of the Insolvency and Bankruptcy (Application to Adjudicating Authority)

Rules, 2016 (in short 'Rules') has been dismissed solely on the ground that

the application filed under Section 7 is beyond the period of limitation of three

years counted in terms of Article 137 of the Limitation Act, 1963.

2. Counsel for the Appellant has submitted that there is an error on the

part of the Adjudicating Authority in misinterpreting the documents on record

while dismissing the application. He has further submitted that the Appellant

has brought on record the balance sheets of the Respondent starting from the

year 2010-11 till the year 2019-20. It is submitted that the Respondent, in

their reply, did not dispute the veracity of the said balance sheets. It is further

submitted that though the relevant balance sheets were sought to be produced before the Adjudicating Authority by the Appellant but he was not

allowed to do so and in this regard an affidavit dated 23.07.2023 of Shyam

Kumar Santhaliya has also been filed before this Court.

3. Be that as it may, it is submitted that in view of the decision of the

Hon'ble Supreme Court rendered in the case of Dena Bank (now Bank of

Baroda) versus C. Shivakumar Reddy and Anr., Civil Appeal No. 1650 of 2020

and the decision of this Tribunal rendered in the case of Tejas Khandhar Vs.

Bank of Baroda, CA (AT) (Ins) No. 371 of 2020 decided on 12.07.2022, the

Appellant can file an application for additional evidence. It is submitted that

the Appellant has filed an application to bring on record the balance sheets of

the Respondent and the veracity of the said balance sheets has not been

contested by the Respondent.

4. On the other hand, Counsel appearing on behalf of the Respondent has

submitted that though the liability of the respondent and guarantor is

coextensive but the Appellant has not chosen to file the proceedings against

the guarantor and in this regard some writ petition has been filed before the

Hon'ble Orissa High court. He has also submitted that even otherwise on

merits the application filed under Section 7 cannot succeed.

5. Be that as it may, at this stage, we are only concerned with the

impugned order which has been passed against the Appellant while

dismissing the application filed under Section 7 only on the ground of

limitation. After perusal of the balance sheets which have been brought on

record, we are of the considered opinion that the application filed under

Section 7 by the Appellant is well within the period of limitation, therefore,

the impugned order is hereby set aside and the application filed by the Appellant under Section 7 is hereby restored for the purpose of further

proceedings to be carried out by the Adjudicating Authority. It is made clear

that we have not passed any order on the merit of the case at all and all the

issues on merits are kept open. The parties are directed to appear before the

Adjudicating Authority on 01st April, 2024.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical) Sheetal/Ravi