9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (5) TMI 1466 - Tri - Insolvency and BankruptcyMaintainability of the fresh application under Section 94 of the Insolvency and Bankruptcy Code (IBC), 2016 without challenging the earlier order dated 01.04.2024 vide which his earlier Application under section 94 of the IBC, 2016 was dismissed for non-compliance - HELD THAT - The present petition filed by the Applicant/ Personal Guarantor is nothing but abuse of the process of law and has been filed only with an intention to misuse the Interim moratorium granted under section 96 of IBC, 2016, while mis-utilizing the interim moratorium for more than 3 years, which is only aimed at defrauding its creditors and delaying the recovery proceeding under SARFAESI Act, 2002 and other provisions of law. Once the Applicant/ Personal Guarantor has chosen not to pursue an earlier Application filed under section 94, which was dismissed for noncompliance, the Applicant without filing an appeal against the order dismissing the said petition, could not have filed the present fresh petition under section 94. The present petition is maintainable in light of the order dated 28.02.2024 of this Tribunal, wherein liberty was granted to the Applicant/ Personal Guarantor to file a fresh application under section 94(1) IBC, 2016 as per law - this Adjudicating Authority is sufficiently empowered to examine maintainability of an Application. Present application dismissed.
Issues Involved:
1. Maintainability of the fresh application under Section 94 of the Insolvency and Bankruptcy Code (IBC), 2016. 2. Alleged misuse of interim moratorium under Section 96 of IBC, 2016. 3. Compliance with previous orders and directions of the Adjudicating Authority. 4. Legal precedents and their applicability to the present case. Issue-wise Detailed Analysis: 1. Maintainability of the Fresh Application under Section 94 of IBC, 2016: The core issue was whether the fresh application filed by the Applicant under Section 94 of IBC, 2016, was maintainable. The Respondent/Caveator IDBI Bank argued that the previous application (No. 77/CH/HP/2021) was dismissed for non-compliance and thus could not be refiled. They relied on the Hon'ble NCLAT's decision in Suri Rajendra Rolling Mills V. Bengani Udyog Pvt. Ltd., which held that a petition dismissed as withdrawn without liberty to refile cannot be refiled. The Applicant countered by stating that the Tribunal had granted liberty to file a fresh application under Section 94(1) of IBC, 2016, as per the order dated 28.02.2024. 2. Alleged Misuse of Interim Moratorium under Section 96 of IBC, 2016: The Respondent/Caveator contended that the Applicant was misusing the interim moratorium granted under Section 96 of IBC, 2016, to delay recovery proceedings under the SARFAESI Act, 2002. They claimed that the Applicant had intentionally not complied with the Tribunal's orders to prolong the interim moratorium and defraud creditors. The Tribunal noted that the Applicant had failed to comply with the directions given in the order dated 06.05.2022 and had not filed a valid AFA of the proposed RP, indicating misuse of the interim moratorium. 3. Compliance with Previous Orders and Directions of the Adjudicating Authority: The Tribunal emphasized that the Applicant had not complied with the directions of the Adjudicating Authority in the previous application. Despite being given multiple opportunities, the Applicant failed to make the application complete as per Section 94(4) and 94(5) of IBC, 2016. The order dated 01.02.2024, which dismissed the previous application for non-compliance, had attained finality as the Applicant did not challenge it in appeal. 4. Legal Precedents and Their Applicability to the Present Case: The Applicant relied on several decisions of the Hon'ble NCLAT, including Venus Sugar Ltd. Vs SASF, Priyal Kantilal Patel v. IREP Credit Capital Pvt. Ltd., and Md. Sadique Islam and Ors. v. Niraj Kumar Agarwal and Ors. However, the Tribunal found these precedents inapplicable as they did not pertain to Section 94 or Section 95 of IBC, nor did they involve issues of misuse of interim moratorium. The Tribunal noted that in the cited cases, the applications were dismissed for non-prosecution or other reasons unrelated to non-compliance with directions under IBC. Conclusion: The Tribunal concluded that the fresh application filed by the Applicant under Section 94 of IBC, 2016, was not maintainable. It found that the Applicant had blatantly misused the interim moratorium available under Section 96 of IBC, 2016, by not complying with the directions given in the previous application and by not challenging the dismissal order dated 01.02.2024. The Tribunal dismissed the present application No. 60/Chd/HP/2024, citing the Applicant's failure to file a complete application and the misuse of the interim moratorium to delay recovery proceedings.
|
