Shree Swastic Sales Corporation ... vs M/S Sheetal Impex Pvt. Ltd

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Ins.) No. 1535 of 2022 IN THE MATTER OF: Shree Swastic Sales Corporation Pvt. Ltd. ...Appellant

Versus

M/s Sheetal Impex Pvt. Ltd. ...Respondent Present: For Appellant: Mr. Yatharth Jain, Adv. For Respondent: Mr. Vivek Jain, Mr. Nitin Sharma, Advocates

ORDER

Per: Justice Rakesh Kumar Jain:

02.01.2023: This appeal is directed against the order dated

14.11.2022, passed by the Adjudicating Authority (National Company Law

Tribunal, New Delhi, Bench-III) by which I.A. No. 5509 of 2022 filed in CP

(IB)544(ND) of 2020 was dismissed on the ground that the same has been

filed after a delay and without assigning any sufficient reasons.

2. Counsel appearing on behalf of the Appellant has submitted that he is

a proxy counsel and prays for an adjournment. The request is declined.

3. The brief facts of the case are that Oriental Bank of Commerce had

initially filed an application under Section 7 of the Insolvency and Bankruptcy

Code, 2016 (in short 'Code') against Shree Swastic Sales Corporation Pvt. Ltd.

(Corporate Debtor). The said petition was admitted on 06.05.2019 and Rakesh

Takyar was appointed as Interim Resolution Professional (IRP). In the said

case, an application was filed by the Financial Creditor vide CA No. 606/C-

III/ND/2019 to the effect that the matter has been settled between the parties and ultimately vide order dated 12.09.2019 the application was allowed and

the CIRP, initiated against the Corporate Debtor on 06.08.2019 was

withdrawn.

4. At the same time, another matter 'M/s Sheetal Impex Pvt. Ltd. Vs. Shree

Swastic Sales Corporation Pvt. Ltd.' bearing IB-544(ND)2020 was also

pending in which an order was passed on 20.02.2020 which read thus:

"Counsel for the Financial Creditor is present and submitted that the Corporate Debtor is already undergoing CIRP vide order dated 08.08.2019. Therefore, the petition is disposed of. However, liberty is granted to the Financial Creditor to revive/restore the petition. In the event of compromise by the Corporate Debtor with other creditors or setting aside the order dated 06.08.2019 in appeal."

5. Thereafter, various orders were passed including the one in which the

Respondent was proceeded against ex-parte i.e. on 11.11.2021 which read as

under:-

"Counsel for the FC is present. No one is present on behalf of the CD. The Counsel for the FC has taken us through his affidavit alongwith proof of service of the present petition upon the CD. It is seen that the said petition has been duly served as per the Track Delivery Reports attached with the said affidavit in support of proof of service.

We are convinced that the Counsel for the FC has adequately served the present petition upon the CD and filed credible evidence in support of the said service of the petition. Today, despite service of the proper petition to the CD, no one is present on behalf of the CD.

In view of the above facts and circumstances, the CD in this matter is set ex-parte for all future proceedings before this Tribunal. Let the matter be posted for further consideration and submission of final arguments by Counsel for the FC after three weeks. List the matter on 16.12.2021."

6. The Appellant filed an application bearing I.A. No. 5509 of 2022 under

Rule 11 of NCLT Rules for setting aside ex-parte order dated 11.11.2021 in

which it was averred that:

"That it is submitted that the CD had gained knowledge of the proceedings instituted against it in the after mentioned matter while visiting the PNB wherein one time settlement proposal was filed on behalf of the CD company with the bank and the bank was in the process of scrutinizing the same. The officials of the bank had informed the CD company that insolvency proceedings under Section 7 of the Code has been initiated against the company which is pending adjudication before the Hon'ble Adjudicating Authority filed on behalf of the FC namely Sheetal Impex Pvt. Ltd. and the OTS as floated by the CD company would become redundant if the IRP is appointed in the company."

7. The said application has been dismissed by the impugned order, inter

alia, on the ground that the application filed after about a year is barred by

limitation and even otherwise no sufficient reason has been given for not

appearing before the Court.

8. Since, we have declined to adjourn the case, Counsel for the Appellant

has basically relied upon the averments in Para 5 of the application to contend

that the Appellant (CD) gained the knowledge of the proceedings instituted

against it in the aforesaid matter while visiting PNB wherein one time

settlement was filed on behalf of the CD with the bank and the Bank was in

the process of scrutinizing the same. Ironically, no date has been given in Para

5 of the application as to when the Appellant had visited the PNB and thus

the reason assigned in the application is totally after thought and concocted.

Even otherwise, the application is highly belated and since it does not give

any sufficient cause for moving the same after such a huge delay, therefore, we do not find any reason to interfere in the well-considered order of the

Adjudicating Authority. No other point has been argued.

9. Hence, in view of the aforesaid facts and circumstances, the appeal is

without merit and the same is hereby dismissed.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

Sheetal/Manu