Paras Builders And Promoters vs Asrec India Limited And Ors

IN THE MATTER OF: Paras Builders and Promoters ...Appellant Versus ASREC India Ltd. & Ors. ...Respondents

Present: For Appellant :

For Respondents : Mr. Abhishek Anand, Mr. Karan Kohli, Ms. Palak Kalra, Advcoates for RP.

Ms. Nistha Gupta and Mr. Anuj Panwar, Advocates for R-1.

ORDER

(Hybrid Mode)

08.07.2024 : I.A. No. 3696 of 2024

1. This is an application praying for condonation of 9 days delay in filing

the appeal.

2. The ground taken in the Affidavit is that Counsel for the Appellant was

not well due to which the appeal could not be prepared and filed on time.

Cause shown sufficient. Delay is condoned.

Comp. App. (AT) (Ins.) No. 1016 of 2024

1. This appeal has been filed against an order dated 02.02.2024 by which

I.A. No. 380/2023 filed by the Appellant, Promotors through its executive

partners have been rejected.

2. An application was filed by the Bank of India under Section 7 against

the Corporate Debtor in which by the Assignment Agreement dated 30.03.2022 M/s. ASREC was substituted and they prosecuted the application

and the Adjudicating Authority subsequently has admitted Section 7

application vide order dated 31.03.2023 appointing the Interim Resolution

Professional.

3. The Appellant aggrieved by the said order has filed the I.A. praying for

recall of the admission order.

4. Learned Counsel for the Appellant submitted that the Appellant has

already challenged the Assignment Agreement which challenge is pending in

the Civil Court. It is submitted that with regard to proceedings under

SARFAESI taken by the Bank there was OTS and challenge is pending in the

Civil Court. It is submitted that Financial Creditor ought to have impleaded

the Appellant also as one of the parties to the Section 7 application and

Assignment Agreement having been challenged Section 7 application ought

not to have been admitted.

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

perused the record.

6. The application under Section 7 was filed by the Bank of India the

Financial Creditor of the Corporate Debtor in which subsequently, on basis of

Assignment Agreement dated 30.03.2022 M/s. ASREC (India) was

substituted who prosecuted the application which has been admitted by the

Adjudicating Authority having found debt and default. By the impugned

order, the application praying for recall of the order has been rejected.

Comp. App. (AT) (Ins.) No. 1016 of 2024 & I.A. No. 3696 of 2024 2 of 3

7. The submission of the Appellant that Assignment Agreement is under

challenged in the civil proceeding is not relevant for recall of the order

admitting Section 7 application.

8. The mere fact that certain OTS was undertaken by the Appellant to take

the debt of the Corporate Debtor and the proceeding under SARFAESI are

under challenge which are pending adjudication before the Competent Court

cannot be a ground to stay the proceeding under Section 7 nor there was any

such order passed by any Court staying the proceeding of Section 7. The

mere fact that Suit 183/2022 filed by the Appellant is pending cannot be a

ground to recall the order passed by the Adjudicating Authority admitting

Section 7 application.

9. The ground to recall the Judgment by the Adjudicating Authority are

limited as held by the 5 Member Bench in `Union Bank of India' Vs. `Dinkar T.

Venkatasubramanian & Ors.', reported in 2023 SCC OnLine NCLAT 283, the

ground raised in the appeal are not covered by any of the grounds as

contemplated in the 5 Member Bench Judgment.

We do not find any merit in the appeal. The appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) himanshu/nn

Comp. App. (AT) (Ins.) No. 1016 of 2024 & I.A. No. 3696 of 2024 3 of 3