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Vimal Saraf & Ors vs Maheshwar Textile & Anr

National Company Law Appellate Tribunal4 September 2018

Ratio decidendi

The rule this decision rests on

The reasoning in this order rests on the following points, in the order the Tribunal takes them: A shareholder who had knowledge of an adjudicating authority's order more than thirty days before filing an appeal, and who has not filed within the thirty-day period extended by the statutory fifteen-day discretionary window, is barred by limitation as against that appellant; a co-appellant who has not shown, on the record, when he acquired knowledge of the order cannot be taken to have had knowledge at a later date than the appellant who did. An application under Section 9 of the Insolvency and Bankruptcy Code filed in the name of a firm, with its proprietor (a Hindu Undivided Family) mentioned in brackets, is to be treated as filed by the firm itself, since a firm cannot be a Hindu Undivided Family and the debt and default pleaded relate to the firm; a discrepancy in the description of the applicant, where the pleaded debt and default otherwise relate to the same entity, is treated as a typographical error and does not defeat the application. A technical objection to a fresh Section 9 application, taken on the ground that it is filed by a different entity, is rejected where the earlier application by the same entity was admitted and set aside only on a technical ground concerning the form of notice, and the subsequent application is filed to cure that defect.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNALNEW DELHICompany Appeal (AT) (Insolvency) No. 510 of 2018IN THE MATTER OF:

Mr. Vimal Saraf & Ors. ...Appellants

Versus

M/s. Maheshwar Textile & Anr. ...Respondents

Present:

For Appellant : Mr. Naresh Kumar Sejvani, Advocate

For Respondents : Mr. Abhishek Anand, Advocate

ORDER

04.09.2018 This appeal has been preferred by the shareholder against the

order dated 13th June, 2018 passed by the Adjudicating Authority (National

Company Law Tribunal), New Delhi Bench with a petition for condonation of

delay. Learned counsel appearing on behalf of the appellant submits that one of

the appellant came to know of the order on 19th June, 2018 and the other

appellant came to know about the order on 31st July, 2018. Certified copy of the

order applied on 31st July, 2018 and received on 29th August, 2018. The appeal

has been preferred thereafter on 29th August, 2018.

From the submission made by the learned counsel for the appellant, we

find that the 1st appellant had knowledge since 19th June, 2018 and was required

to file appeal within thirty days and thereafter fifteen days could have allowed to

file an appeal, but he has not filed the appeal till 29th August, 2018, therefore

appeal at his instance is barred by limitation.

2

Insofar as the 2nd appellant is concerned, he has come along with 1st

appellant, but nothing has brought on record to show that he came to know the

order of 13th June, 2018 on 31st July, 2018 particularly when other appellant

had knowledge on 19th June, 2018. However, going into the aforesaid plead, we

decided to hear the appeal on merit.

Learned counsel appearing on behalf of the respondent submits that

'Corporate Debtor' initially moved appeal against the same very impugned order

in 'Company appeal (AT)(Insolvency) No. 314 of 2018' which was dismissed by

this Appellate Tribunal on 31st July, 2018 as not maintainable. On merit also,

this Appellate Tribunal was not inclined to interfere with the order.

Learned counsel appearing on behalf of the appellants submits that the

application under Section 9 of the I&B Code was filed by M/s. Maheshwar

Textiles (HUF) in view of arbitral award dated 19th August, 2009. From the

record we also find that the Arbitration case in Case No. A-1/2009-2010 was

filed by 'M/s. Maheshwar Textiles'. The earlier application under Section 9 was

also filed by 'M/s. Maheshwar Textiles'. We are not inclined to accept the

submission made on behalf of the appellant that 'M/s. Maheshwar Textiles' is

different from 'M/s. Maheshwar Textiles (HUF)'. In fact it is a proprietary HUF

firm. The application under Section 9 was filed by 'M/s. Maheshwar Textiles'

and HUF being the proprietor has been mentioned in the bracket. A firm which

starts with 'Messrs' cannot be a Hindu Undivided Family. It being a firm has

preferred the application. Otherwise it is to be treated as typographical error

because of the dues has been shown in the enclosure in para 4 and 5 i.e. 'debt'

and 'default' which relates to 'M/s. Maheshwar Textiles'. At this stage, we may

Company Appeal (AT) (Insolvency) No. 510 of 2018 3

mention that earlier also 'M/s. Maheshwar Textiles' filed an application under

Section 9 of the I&B Code, which was admitted. It was challenged by the

'Corporate Debtor' - 'Zapp India Ltd.' before this Appellate Tribunal. It is only

on technical ground that Notice under Section 8(1) was issued by an advocate,

this Appellate Tribunal by order dated 22nd September, 2017 in 'Company Appeal

(AT)(Insolvency) No. 157 of 2017' set aside the order of admission. Therefore,

'M/s. Maheshwar Textile' filed the fresh application under Section 9 in which

again a technical ground has been taken by shareholder, that it is a different

firm i.e. 'M/s. Maheshwar Textile (HUF)', such submission is rejected. In

absence of any merit, the appeal is dismissed. No cost.

I.A. No. 1318 of 2018 also stands disposed of.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial)

/ns/uk/

Company Appeal (AT) (Insolvency) No. 510 of 2018

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