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2020 (5) TMI 425 - AT - Insolvency and BankruptcySeeking stay of the CIRP process - Corporate Debtor failed to make repayment of its dues - time limitation - main grievance of the appellant is that the Adjudicating Authority while passing the order on June 13, 2018 in section 7 application had omitted to consider and adjudicate as to whether the said petition was filed within the period of limitation - HELD THAT - A mere glance of the ingredients of the section 61(1) and (2) of the I and B Code indicates that though any person aggrieved of an order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal, this Tribunal is of the earnest opinion that the present appeal preferred by the appellant is per se not maintainable in law because of the established fact that when once a case was admitted under the IBC, the only option available to a party as an aggrieved person is to prefer an appeal of course in accordance with law, against the order of admission already passed and not to prefer an application seeking stay of all the pending proceedings in C. A. No. 455 (PB) of 2018 filed in C. P. (I. B.) No. 160 (PB) of 2018 till its adjudication and dismiss the company petition. The instant appeal is dismissed as not maintainable but without costs.
Issues:
1. Appeal against order dated January 13, 2020 passed by the Adjudicating Authority. 2. Applicability of limitation period in filing C. P. (I. B.) No. 160 (PB) of 2018. 3. Maintainability of the appeal under section 61 of the Insolvency and Bankruptcy Code, 2016. Issue 1: Appeal against Adjudicating Authority's Order: The appellant, as an "aggrieved person," filed an appeal under section 61 of the Insolvency and Bankruptcy Code, 2016, against the order dated January 13, 2020, passed by the Adjudicating Authority (National Company Law Tribunal) Principal Bench, New Delhi in C. A. No. 190 (PB) of 2020 in C. P. (IB) No. 160 (PB) of 2018. The appellant contended that the financial creditor's application was barred by limitation as the corporate debtor's account became a "non-performing asset" on November 6, 2011, and the application was filed on January 10, 2018. The appellant argued that the Adjudicating Authority failed to consider the limitation aspect while admitting the application on June 13, 2018. Issue 2: Applicability of Limitation Period: The appellant raised concerns regarding the application C. P. (I. B.) No. 160 (PB) of 2018 being filed beyond the three-year limitation period from the date of the "non-performing asset," citing the decision of the Supreme Court in Gaurav Hargovindbhai Dave v. Asset Reconstruction Co. (India) Ltd. The appellant emphasized that the limitation issue was not addressed in the previous order by the Adjudicating Authority. Reference was made to previous judgments and legal provisions to support the argument that the application was time-barred, seeking the disposal of the company appeal under the National Company Law Tribunal Rules, 2016. Issue 3: Maintainability of the Appeal under Section 61: The Tribunal analyzed section 61(1) and (2) of the Insolvency and Bankruptcy Code, 2016, which allows an aggrieved person to appeal to the National Company Law Appellate Tribunal within a specified period. However, the Tribunal concluded that the present appeal was not maintainable as the only recourse after admission under the IBC is to appeal against the admission order, not to file a separate application seeking a stay of proceedings. The Tribunal highlighted the principle of "estoppel" due to the appellant's earlier dismissed appeal and deemed the current appeal as unnecessary litigation. Consequently, the appeal was dismissed as not maintainable in the eye of the law. This comprehensive analysis of the judgment highlights the key issues raised by the appellant, the legal arguments presented, and the Tribunal's decision regarding the appeal against the Adjudicating Authority's order, the limitation period in filing the application, and the maintainability of the appeal under the relevant provisions of the Insolvency and Bankruptcy Code, 2016.
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