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TMI Blog2021 (3) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... f operational debt. It is also seen that during the pendency of reference before BIFR on 23.03.2009 the Appellant had filed a Civil Suit No. 315 of 2009 before Civil Judge Vadodara for declaration that the transfer or alienation of the assets by the Respondent is illegal and malafide and issue injunction against the Respondent not to transfer or alienate the assets of the Company - The Appellant was not part of the scheme and they have already approached Civil Court. In such circumstances, it cannot be said that the legal right of remedy of the Appellant against the Respondent was suspended as per section 22(1) of the SICA. Whether as per section 22(5) of the SICA the Appellant is entitled to get exclusion in computing the period of limitation spent in SICA Proceedings? - HELD THAT:- As per the provision of Section 22(5) of the SICA the Appellant is entitled to get exclusion for aforesaid period in computing the period of limitation - the Appellant was not part of the scheme and he has obtained the consent of BIFR for initiating its legal right of remedy against the Respondent Company before the Civil Court. Thus the remedy against the Respondent was not suspended, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 22(5) of SICA the period consumed in the course of such proceedings had to be excluded in computing the period of limitation. Thus, the Application under Section 9 of the I B Code is within limitation. 3. The Corporate Debtor has not filed any Reply/Response to the Application filed under Section 9 of the I B Code, it is submitted that Section 22(5) of the SICA is not applicable in this case hence, the Application is barred by limitation. 4. Ld. Adjudicating Authority examined the legal question and after elaborate discussion reject the Application on the ground that the provision of Section 22(5) of the SICA are applicable to suits and not proceedings under Section 9 of the I B Code. It is also held that under Section 22(1) of the SICA provides that proceedings or suit as specified under Section 22(1) of the SICA can be instituted or proceeded with the consent of BIFR/AAIFR. The Operational Creditor is not part of reference therefore, he cannot claim exclusion of period under section 22(5) of the SICA for the purpose of computation of limitation. Thus dismissed the application under section 9 of the I B Code as time barred. 5. Being aggrieved with this order the Oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y bar under Section 22(1) of the SICA. Therefore, there was no need to file an Application seeking exclusion of period under Section 22 (5) of the SICA. The Appellant is entitled to get exclusion for the period spent in proceedings under SICA. Thus, the Application under Section 9 of the I B Code is within limitation. 12. Notice of this Appeal, is duly served on the Respondent however, despite service of notice, nobody appear on behalf the Respondent on 13.10.2020, 19.11.2020, 21.12.2020, 12.01.2021 and 13.02.2021, Thus, we proceeded ex-parte against the Respondent. 13. After hearing Learned Counsel for the Appellant, we have perused the record. 14. Following issues are crop up for our consideration: - (a) Whether as per section 22(1) of the SICA the legal proceedings for recovery of operational debt were suspended, if yes? (b) Whether as per section 22(5) of the SICA the Appellant is entitled to get exclusion in computing the period of limitation spent in SICA Proceedings? Issue No. 1 15. It is admitted fact that the Appellant supplied goods to the Respondent and the last payment was made by Respondent on 22.11.2004. On 11.01.2005 the Respondent has acknow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase, this proposed settlement is not acceptable to both these unsecured creditors they have the option not to accept the scale down value of their dues and instead wait till the scheme of rehabilitation of the Company has worked itself out with an option to recover their debt post such rehabilitation. The bench also observed that the company would have sufficient cash to meet these unsecured creditors after 2017 by which time the company would also turn net worth positive. Thus, the bench observed no change to clause 8(2) on page 15 of the DRS is required. 17. During sanction of the rehabilitation scheme Appellant filed an application M.A. No. 603 of 2010 under Section 22(1) of the SICA before the BIFR. BIFR vide order dated 20.11.2012 allowed the application and the Appellant was permitted to approach appropriate Civil Court for adjudication of its dues, with the condition that if any, decree awarded by the Court, it would be executed with prior approval of BIFR. 18. With the aforesaid facts, it is clear that the Appellant was not ready to accept proposal of the settlement of outstanding dues at 20% and Appellant sought consent of the board to approach appropriate Civil Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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