Manoj Arya vs Respondent

IN THE MATTER OF: Manoj Arya ...Appellant

Versus

--- ...Respondent

Present: For Appellant : Mr. Anuj Tiwari and Mr. Ayush Rajani, Advocates

For Respondent :

ORDER

(Hybrid Mode)

09.01.2025 I.A. No.6433 of 2024 This is an application praying for

condonation of 11 days delay in filing the Appeal. Sufficient cause has been

shown in paragraph 3 of the delay condonation Application. Delay is

condoned.

This Appeal have been filed against the order dated 14.06.2024 passed

by National Company Law Tribunal, Mumbai Bench, Court-II in CP(IB)/

145(MB)/2024 filed by the Applicant under Section 94 of the Insolvency and

Bankruptcy Code, 2016. Adjudicating Authority in paragraph 7 has observed

that:

"....

7. From a perusal of the averments made in the application, it transpires that the personal guarantee given by the Applicant in favour of the Bank of India was never invoked nor any invocation notice has been placed on record. The instant Petition under Section 94 of Insolvency and Bankruptcy Code, 2016 has filed on the basis of a show cause notice dated 30.11.2011 issued by the Central Excise imposing a penalty of Rs. 30,00,000/- upon the Applicant. In these circumstances, in our considered view, when the guarantee is not shown to have been invoked by Bank of India at any point of time, the present Petition under Section 94 of Insolvency and Bankruptcy Code, 2016 could not have been filed on the basis of the notice issued by the Central Excise or any other Authority. We are further of the considered view that the present Petition, on the face of it, is not maintainable and seems to have been filed for some ulterior purpose which is nothing but a gross abuse of the process of law. Therefore, we dismissed this Petition under Section 94 of Insolvency and Bankruptcy Code, 2016 with a cost of Rs. 1,00,000/- which shall be recovered from the Applicant. File be closed and consigned to records."

Learned Counsel for the Appellant submits that only reason given by

the Adjudicating Authority is that guarantee has never been invoked by the

Bank whereas, on 15.06.2015 a notice was issued by the bank in which

Appellant was also mentioned at serial number 2, hence, the finding is not

correct. It is further submitted that OA has also been filed by the Bank.

Learned Counsel for Appellant, however, submits that the said notice

was not brought on the record before the Adjudicating Authority. We have

considered submission of Counsel for the Appellant and perused the record.

In the Application, which was filed by the Applicant show cause notice

dated 30.11.2011 issued by Central Excise imposing a penalty of

Rs.30,00,000/- was relied and Adjudicating Authority rightly referring to the

said notice has held that no case has been made out to entertain the

Company Appeal (AT) (Insolvency) No. 1763 of 2024 2 of 3 application. Submission of the Appellant that notice was issued on

15.06.2015 which notice was never filed before the Adjudicating Authority

also does not commends us to find any fault with the order of the Adjudicating

Authority. Given that the Application has been filed by the Applicant in year

2024 and the said notice is claimed to be issued on 15.06.2015, the

application was not entertainable. We do not find any good ground to

entertain this Appeal.

Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) pks/nn

Company Appeal (AT) (Insolvency) No. 1763 of 2024 3 of 3