Omkara Assets Reconstruction Private ... vs Madhusudan Motors Private Limited

IN THE MATTER OF: Omkara Asset Reconstruction Pvt. Ltd. ...Appellant Versus Madhusudan Motors Pvt. Ltd. ...Respondent

Present: For Appellants : Mr. Namit Suri, Ms. Surabhi Sinha, Advocates with Mr. Ravi, CS.

For Respondent :

ORDER

(Hybrid Mode)

23.08.2024 : Heard Counsel for the Appellant.

2. This Appeal has been filed against an Order dated 07.06.2024 passed

by the Learned Adjudicating Authority (National Company Law Tribunal,

Allahabad Bench, Prayagraj) in I.A. No. 121/2024 in C.P. (IB) No.

57/ALD/2023. Application was filed by the Appellant for seeking amendment

and rectification of date of default from 07.03.2021 to 25.07.2021.

3. Appellant claims an Assignee from the Financial Creditor which

assignment was taken by the Appellant on 30.09.2021. Subsequently, the

Appellant also issued Notice under Section 13(2) of the SARFAESI Act on

21.05.2022 and thereafter filed the Section 7 Application.

4. In Part-IV of Form-I the date of default mentioned was 07.03.2021

which is noted by the Adjudicating Authority in Paragraph 2 (vi) is as follows:

"2 (vi) In the said captioned petition, as contended by the Applicant, the date of default was mentioned as 07.03.2021 in Para 2 of Part-IV of the Form-I, which pertained to the default committed by the Corporate Debtor qua the Lender Bank and this date was prior to the date of Assignment of debt in favour of the Applicant."

5. The Application was filed to amend the date 07.03.2021 to 25.07.2021

which has been rejected by the Adjudicating Authority after considering the

submissions of both the Parties.

6. Learned Counsel for the Appellant challenging the Order contends that

default was continuing in nature hence the Appellant was entitled to change

the date of default from 07.03.2021 to 25.07.2021. It is submitted that

Assignee is not remediless with respect to default which was committed by

the Corporate Debtor.

7. We have considered the submissions of Counsel for the Appellant and

perused the record.

8. In Section 7 Application which was filed by the Appellant admittedly the

date of default was also 07.03.2021 which was hit by Section 10A period.

9. Submission of the Appellant is that Appellant is not remediless, he can

very well file Section 7 Application is a submission which can be accepted, in

event the Application under Section 7 is filed on default subsequent to 10 A

period.

10. Any Financial Creditor is at liberty to initiate Section 7 Proceedings

when a default which is not covered by 10A period. Admittedly the Appellant

has issued Notice under Section 13(2) and is entitled to take proceedings

under SARFAESI Act.

11. Learned Counsel for the Appellant also referred to an Order dated

05.12.2023 passed by the Adjudicating Authority (National Company Law

Tribunal, New Delhi, Court III, in the matter of `PHL Fininvest Private Limited'

Vs. `Kay Jay Leasing Limited'. It is submitted that in similar case, Comp. App. (AT) (Ins.) No. 1506 of 2024 2 of 3 Adjudicating Authority has allowed the amendment. The Order passed by the

Adjudicating Authority in a different case may not be precedent for Appellant

to rely in the facts of the present case.

12. Question of amendment is a question of facts which differs from case

to case and in the present case where Part IV clearly mentioned the date of

default which was hit by 10A, Adjudicating Authority did not commit in

rejecting the Amendment Application.

13. We however make it clear that it shall be open for the Appellant to take

such remedy as available in law.

The Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) himanshu/nn

Comp. App. (AT) (Ins.) No. 1506 of 2024 3 of 3