Sanjay Kanubhai Patel vs Satra Properties India Limited ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Comp. App. (AT) (Ins) No. 159 of 2024 IN THE MATTER OF: Sanjay Kanubhai Patel ...Appellant

Versus

Satra Properties (India) Ltd. & Anr. ...Respondents

Present: For Appellants : Mr. Sumant Batra, Sagar Bansal, Sarthak Bhandari, Pulkit Kapoor, Dhruv P., Adv. For Respondent : Ms. Neha Agarwal, Adv. Ms. Vaishali Patrikar, RP

ORDER

(Hybrid Mode)

Per: Justice Rakesh Kumar Jain: (Oral)

16.05.2025: This appeal is filed by the Suspended Director of the CD,

namely, Cineline Exports Pvt. Ltd. being aggrieved against the order dated

24.11.2023 by which an application filed under Section 7 of the Code by Satra

Properties (India) Ltd. (now in CIRP through RP) has been admitted and Ms.

Vaishali Arun Patrikar has been appointed as the IRP.

2. At the time of issuance of notice on 07.02.2024, this court passed the

order of stay in the following manner "In the meantime, the IRP shall keep the

CD as a going concern, however, no final decision shall be taken with regard

to the any resolution plan in the CIRP"

3. Shorn of unnecessary details, the Respondent filed the petition under

Section 7 on 08.12.2022 for the resolution of an amount of Rs. 4,60,02,495/-

including interest specifying the date of default in Part IV of Form A as

31.03.2022.

4. The Tribunal has decided that though the loan was advanced on

01.04.2015 but since the loan amount is shown as payable in the balance

sheet of the Respondent in the year ending on 31.03.2022, therefore, the

petition filed on 08.12.2022 was within the period of limitation because of Section 18 of the Limitation Act 1963 which deals with the acknowledgement

of debt and extention of period of limitation.

5. However, before this Court, counsel for the Appellant has raised an

altogether different argument alleging that the date of default has wrongly

been mentioned by the Respondent in Part IV of Form A as 31.03.2022

because the default had actually occurred on 17.12.2020 which fall within

the period of 10A of the Code, therefore, the petition filed under Section 7 was

not maintainable and could not even have been entertained by the Tribunal.

6. In this regard, Counsel for the Appellant has referred to a letter dated

01.04.2015 which is the bedrock of the contract between the parties which

read as under:-

7. According to the Appellant, the amount of loan was Rs. 2,07,62,378/-

which was advanced with interest @ 12% p.a which was liable to be repaid

by the Appellant on demand.

8. It is submitted that the demand was first made by the RP of the

Respondent on 17.12.2020 by writing a letter to the Appellant which read as

under:-

9. Counsel for the Appellant has submitted that since the entire loan

amount of Rs. 3,46,71,763/- was recalled (principal + interest) by way of

notice dated 17.12.2020 in which the Respondent was given 7 days time for

payment to the Appellant and the said amount was not paid despite the said

notice, therefore, the date of default has to be taken, if not 17.12.2020 then

24.12.2020 when the period of 7 days had expired.

10. He has further submitted that during the pendency of the proceedings

before the Tribunal various orders passed by the Tribunal itself on 17.03.2023, 01.05.2023, 14,06,2023, 10.07.2023, 16.08.2023, 14.09.2023

and 26.09.2023 qua the date of default.

11. It is submitted that Respondent also filed an affidavit dated 11.10.2023

to explain the date of default mentioned in Part IV.

12. Be that as it may, it is further submitted that if the date of default was

17.12.2020 by virtue of which the entire loan was recalled by the Respondent

and had not been paid by the Appellant then the Respondent had no locus to

choose the date of default as 31.03.2022 in order to wriggle out of rigours of

Section 10 A which prohibits the filing of an application under Section 7, 9

or 10.

13. In support of his submissions, he has relied upon a decision in the case

of Office Beanz Pvt. Ltd. Vs. ....CA (AT) (Ins) No. 1725 of 2024 decided on

09.09.2024 to contend that once the default occurred during the period of

10A then no application can be filed under Section 7, 9 or 10 even after the

expiry of Section 10A.

14. He has also relied upon a decision of this Court in the case of J.C

Flowers Asset Reconstruction Pvt. Ltd. Vs. Deserve Exim Pvt. Ltd., CA (AT)

(Ins) No. 486 of 2023 decided on 03.05.2023.

15. On the other hand, Counsel for the Respondent has argued that the

issue of date of default, falling during the period provided under Section 10A,

was not argued by the Appellant before the Tribunal, therefore, it cannot be

raised for the first time before this Court. She has not denied that the

Respondent had served the notice dated 17.12.2020 but that is not the last

notice which has been given because there were subsequent notices given to

the Appellant for making the payment of the outstanding amount, therefore,

the limitation has to be counted from the last notice given which is beyond

the period of 10A.

16. We have heard Counsel for the parties and perused the record with their

able assistance.

17. The issue involved in this case as to what is the actual date of default?

18. Whether it is 17.12.2020 or 24.12.2020 when the period of 7 days had

expired and no payment was made or any date after the said notice because

of subsequent notice given by the Respondent to the Appellant for making the

payment which was not paid and had crossed the period of 10A.

19. For the purpose of deciding this issue, we are of the considered opinion

that the matter deserves to be remanded back to the Tribunal to take a holistic

view by looking into entire evidence brought on record and law applicable

thereto, therefore, while allowed the appeal, we set aside the impugned order

and restore the application filed under Section 7 to its original number.

20. Before parting with this order, we make it clear to the parties as well as

to the Tribunal that we have not made any observation on the merit of the

case at all and everything has been kept open for the Tribunal to decide in

accordance with law.

21. The parties are directed to appear before the Tribunal on 10th June,

2025.

I.A.s, if any pending, are hereby closed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical) SC/RR