Shashi Mohan Garg vs International Asset Reconstruction ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL NEW DELHI Company Appeal (AT) (Insolvency) No. 123 of 2019 (arising out of order dated 25th April, 2018 passed by National Company Law Tribunal, Hyderabad Bench, Hyderabad in C.P. (IB) No. 497/7/HDB/2018)

IN THE MATTER OF: Shashi Mohan Garg, 7, Eastern Avenue, Maharani Bagh, New Delhi ...Appellant

Versus

1. International Asset Reconstruction Company Pvt. Ltd., R/o 709, 7th Floor, Ansal Bhawan 16, Kasturba Gandhi Marg, New Delhi - 110 001.

2. M/s. Atlanti Spinning and Weaving Mills Limited Through Shaik Gouse, Resolution Professional, Flat No. 401, Siddhartha Residency, Plot No. 56, Sy. No. 48, Behind Hotel Best Western Jubilee, Ridge, Kavuri Hills, Phase-I, Madhapur, Hyderabad - 500 034. ...Respondents

Present: For Appellant : Mr. Krishnendu Datta, Mr. Nakul Mohta, Mr. Ankur Goel, Mr. Johnson Subba and Ms. Pallavi Srivastava, Advocates For Respondents: Mr. Mithun Shashank, Mr. Mukunda Maminidipudi, and Mr. Vasanth Bharani, Advocates for Respondent No. 1

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

The Appellant - shareholder of M/s. Atlanti Spinning & Weaving Mills

Ltd. (Corporate Debtor) has preferred this appeal against order dated 9th 2

October, 2018 passed by the Adjudicating Authority (National Company Law

Tribunal), Hyderabad Bench, Hyderabad. The appeal has been filed after the

delay of 270 days on the only ground that the Appellant had no knowledge

about the impugned order. Learned counsel appearing on behalf of the

Appellant submitted that the impugned order was passed by the Adjudicating

Authority without notice to the 'Corporate Debtor'. However, from the

impugned order we find that after notice nobody appeared, and, therefore, the

Adjudicating Authority noted in the order sheets that nobody appears on

behalf of the 'Corporate Debtor'.

2. When we ask the counsel to address the case on merit, the only ground

taken is that the application under Section 7 of the 'Insolvency & Bankruptcy

Code, 2016' (for short, the 'I&B Code') was barred by limitation.

3. From the record, we find that the application under Section 7 of the I&B

Code was filed by 'International Asset Reconstruction Company Private

Limited'. The 'Corporate Debtor' having defaulted in repaying the amount of

Rs. 70,22,04,757.31 as on 15th May, 2018, the petition was filed under

Section 7 of the I&B Code after serving a copy of the same to the 'Corporate

Debtor'.

4. It further appears that the 'Corporate Debtor' had taken loan from

Allahabad Bank, Ratnakar Bank Limited and Axis Bank Limited respectively.

IDBI, Allahabad Bank (now IARC) and SBoP had moved before the 'Debt

Recovery Tribunal' ('DRT'), Mumbai by filing Original Application No.

292/2010. Since December, 2013 the 'Corporate Debtor' proposed for OTS

and the latest proposal for OTS was dated 23rd September, 2015. Notice was

sent to the 'Corporate Debtor' by order dated 7th September, 2018. During

Company Appeal (AT) (Insolvency) No. 123 of 2019 3

the pendency of the case, the 'Assignment Agreement' was reached between

the aforesaid 'Financial Creditor' with the Respondent - ''International Asset

Reconstruction Company Private Limited' on 15th February, 2014, 26th March,

2014 and 29th March, 2014. A notice was issued to the 'Corporate Debtor' by

the Tribunal vide its order dated 7th September, 2018. The 'postal receipt'

along with 'postal track record' showing the delivery status and it was shown

consignment notice issued on the 'Corporate Debtor' served was also filed. In

spite of the service of notice on the 'Corporate Debtor' failed to appear. All

these facts have been noticed by the Adjudicating Authority while passing the

order.

5. In the aforesaid background and in view of the fact that the appeal is

barred by limitation as more than 240 days have passed, if we exclude 30

days of filing the appeal, we have no jurisdiction to condone the delay. As

there is no ground also to interfere with the impugned order, the appeal is

dismissed. No costs.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice A.I.S. Cheema ] Member (Judicial)

[ Kanthi Narahari ] Member (Technical) New Delhi 30th May, 2019

/ns/

Company Appeal (AT) (Insolvency) No. 123 of 2019