9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2024 (5) TMI 1467 - Tri - Insolvency and BankruptcyMaintainability of the fresh application filed under Section 94 of 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 the 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 Application is maintainable in the 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 - not only the Applicant failed to comply with the directions of this Adjudicating Authority in complying with the provisions of Section 94(4) and 94(5) to make the Application complete but also did not challenge the order dated 01.02.2024 of this Adjudicating Authority. Hence, the order dated 01.02.2024 attained finality. 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 IBC, 2016. 2. Alleged misuse of interim moratorium by the Applicant/Personal Guarantor. 3. Compliance with previous orders of the Adjudicating Authority. 4. Legal precedents and their applicability to the present case. Detailed Analysis: 1. Maintainability of the Fresh Application under Section 94 of IBC, 2016: The primary issue was whether the fresh application filed by the Applicant under Section 94 of the Insolvency and Bankruptcy Code (IBC), 2016, was maintainable. The Respondent/Caveator argued that since the previous application (No. 91/CH/2021) was dismissed for non-compliance, the Applicant could not refile the same application. They relied on the decision in the case of Suri Rajendra Rolling Mills V. Bengani Udyog Pvt. Ltd., where it was held that a similar petition could not be filed after being dismissed as withdrawn without liberty to refile. Contrarily, the Applicant contended that the present application was maintainable based on the order dated 28.02.2024, which granted liberty to file a fresh application under Section 94(1) of IBC. The Applicant cited several NCLAT decisions, such as Venus Sugar Ltd. Vs SASF and Priyal Kantilal Patel v. IREP Credit Capital Pvt. Ltd., to support the argument that a fresh application could be filed if the earlier one was dismissed for non-prosecution. 2. Alleged Misuse of Interim Moratorium by the Applicant/Personal Guarantor: The Respondent/Caveator alleged that the Applicant was misusing the interim moratorium granted under Section 96 of IBC, 2016, to delay recovery proceedings under the SARFAESI Act, 2002. It was argued that the Applicant had intentionally not complied with the orders of the Adjudicating Authority to prolong the interim moratorium and delay the recovery actions by the creditors. 3. Compliance with Previous Orders of the Adjudicating Authority: The Adjudicating Authority had previously directed the Applicant to comply with the provisions of Section 94(4) and 94(5) of the IBC, 2016, within a specified time frame. The Applicant failed to comply with these directions, leading to the dismissal of the earlier application on 01.02.2024. The Applicant did not challenge this dismissal order, which attained finality. 4. Legal Precedents and Their Applicability to the Present Case: The Applicant relied on several NCLAT decisions to argue the maintainability of the fresh application. However, the Adjudicating Authority noted that these cases did not pertain to Sections 94 or 95 of IBC and did not involve the issue of misuse of interim moratorium. The Adjudicating Authority emphasized that even if liberty was granted to file a fresh application, it retained the power to examine the maintainability of such an application. Conclusion: The Adjudicating Authority dismissed the fresh application No. 61/Chd/HP/2024 filed by the Applicant under Section 94 of IBC, 2016. It was concluded that the Applicant had failed to comply with previous orders, and the earlier dismissal had attained finality. The fresh application was deemed an abuse of the process of law, aimed at misusing the interim moratorium to delay recovery proceedings under the SARFAESI Act, 2002. The legal precedents cited by the Applicant were found inapplicable to the facts and circumstances of the present case.
|
