Sibanarayan Chhotray & Ors vs Srabani Constructions Private Limited ...

Sibanarayan Chhotray & Ors. ...Appellants

Versus

Srabani Construction Pvt. Ltd. & Anr. ...Respondents Present:

For Appellants : Mr. Aishvary Vikram, Mr. Abinash Barik and Mr. Merusagar Samantray, Advocates For Respondents : -

ORDER

18.05.2023: Heard learned Counsel for the Appellant.

2. This appeal is against the order dated 29.11.2022 passed by the

Adjudicating Authority (NCLT, Cuttack Bench) by which the Application filed

under Section 7 by Indian Overseas Bank- Financial Creditor has been

admitted. When the Appeal was taken, the Appellant made a statement that

suspended management is taking steps to settle with the Financial Creditor.

Recording the said statement, the appeal was adjourned. On 23.02.2023 the

following order was passed:

"O R D E R

23.02.2023: Learned counsel for the Appellant submits

that suspended management is taking steps to settle with the Financial Creditor. He seeks adjournment. Appeal is

adjourned to 17.03.2023.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)"

3. Subsequently, when the appeal was taken, this Tribunal passed

the following order on 02.05.2023:

"O R D E R

02.05.2023: On the first day, when the appeal was

taken up on 23.02.2023, Ld. Counsel for the Appellant

made submission that suspended management was taking

steps to settle with the Financial Creditor. Thereafter on

17.03.2023, the appeal was adjourned on the prayer of Ld.

Counsel for the Appellant. Again on 10.04.2023, Ld.

Counsel for the Appellant sought time which was granted

and today Mr. Aishvary Vikram, Ld. Counsel for the

Appellant submits that settlement has not arrived. In such

situation we are of the opinion that appellant is required to

file a short affidavit indicating therein that though earlier

adjournment was sought for settlement, till date settlement

has not arrived. Such affidavit may be filed within a period

of two weeks.

Put up on 18.05.2023.

Company Appeal (AT)(Insolvency) No. 201 of 2023 & I.A. No. 732 of 2023 Page 2 of 4

[Justice Rakesh Kumar] Member (Judicial)

[Dr. Alok Srivasatava] Member (Technical)"

4. Today when the Appeal was taken, learned Counsel for the Appellant

submits that in spite of repeated information sent by the Appellant, there is no

response and hence the Affidavit, as was directed, could not be filed. He

however, submits that sequence of the events indicate that no settlement could

be arrived with the Financial Creditor.

5. Learned Counsel for the Appellant submits that by the order impugned

the amendment Application filed by the Financial Creditor was also allowed

permitting the amendment in the Application and there was no opportunity to

the Appellant to respond to the amendment.

6. We have considered the submissions of the Counsel for the parties and

perused the records. The only question which was raised before the

Adjudicating Authority was regarding bar of limitation. The Adjudicating

Authority has dealt the said issue in detail and it was held that the Application

is not barred by time. NPA was declared on 30.06.2015 and the Application

was filed on 05.09.2022. There were revival letters issued by the Corporate

Debtor on 13.12.2016 and 18.06.2019. In view of the revival letters, it has been

specifically held by Adjudicating Authority that application was not barred by

time.

Company Appeal (AT)(Insolvency) No. 201 of 2023 & I.A. No. 732 of 2023 Page 3 of 4

7. We are of the view that the Appellant has been rightly given benefit of

Section 18 of the Limitation Act extending the limitation and hence we are of

view that no error could be found in the decision of the Adjudicating Authority

holding that the Application is not barred by time.

There is no merit in the Appeal. Appeal is dismissed.

[Justice Ashok Bhushan] Chairperson

[Mr. Naresh Salecha] Member (Technical) akc/nn

Company Appeal (AT)(Insolvency) No. 201 of 2023 & I.A. No. 732 of 2023 Page 4 of 4