9911796707
TMI Blog2021 (9) TMI 986X X X X Extracts X X X X X X X X Extracts X X X X ..... Gay Printers' has filed the Appeal against the order dated 03.02.2020 passed by the Ld. Adjudicating Authority (National Company Law Tribunal, New Delhi) passed in CP12 (ND)/2017 in (IB) No. 301-ND/2017 whereby dismissed the Application under Section 340 of the Cr.P.C filed by the Appellant. 2. Brief facts of this case are that the Appellant being a Financial Creditor had filed an Application under Section 7 of the IBC against the Corporate Debtor (Respondent) on 22.08.2017 before the Adjudicating Authority. The Corporate Debtor filed their short Affidavit dated 30.08.2017 stated that an MOU dated 18.05.2015 was entered between the Financial Creditor and Corporate Debtor whereby the disputed amount to be treated as an advance in terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at an erroneous conclusion. Therefore, held that no inquiry is required under Section 340 of the Cr.P.C and dismissed the Application. Being aggrieved with this order, the Appellant has filed this Appeal alongwith I.A. No. 3048 of 2020 an Application for condonation of delay in filing the Appeal. 4. In the Application for condonation of delay, it is stated that as per Section 61 of the IBC the Appellant was required to file the Appeal within 30 days and this Appellate Tribunal may condone further period of 15 days. It is also stated that Hon'ble Supreme Court of India in Suo Moto W.P. (C) No. 3 of 2020, In Re: Cognizance for extension of limitation vide order dated 23.03.2020 extended the limitation period prescribed under law and order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lish with support of the document that the financial debt claimed in the Section 7 Petition was payable to it by Pawan Buildwell. Since, no document was produced by the Appellant to show that the financial debt was owed to it. Thus, the Appellant could not come within the definition of the Financial Creditor as defined under the IBC. Hence, dismissed the Section 7 Petition as not maintainable. The question of MOU did not form the basis of adjudication of the Section 7 Petition. Therefore, Ld. Adjudicating Authority has rightly dismissed the Application under Section 340 of the Cr.P.C. 7. It is stated in the Reply that on 20.02.2018 the Appellant had filed second section 7 Petition for the same financial debt and the Petition was admitted o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any Application for amending the memo of Appeal. 11. We have heard Ld. Counsels for the parties at length and also gone through the written submissions filed by them. 12. Firstly, we have considered the Application I.A. No. 3048 of 2020 for condonation of delay. The impugned order is pronounced on 03.02.2020. In view of the provisions under Section 61 of the IBC as per prescribed period the Appeal was required to be filed within 30 days till 04.03.2020. However, the Appeal was filed on 29.12.2020 i.e. after a delay of 299 days. As per proviso to sub-Section (2) of Section 61 of the IBC, this Tribunal may condone the delay for a period not exceeding 15 days. Ld. Counsel for the Appellant has taken shelter of the order passed by the Hon'bl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
