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TMI Blog2024 (5) TMI 1467X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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. - SH. L. N. GUPTA, HON BLE MEMBER (T) AND SH. HARNAM SINGH THAKUR, HON BLE MEMBER (J) For the Petitioner : Mr. A. S. Likhari, Advocate For the PNB and Punjab and Sind Bank : Mr. Arpit Chawla, Advocate For the IDBI Bank : Mr. Pulkit Goyal, Advocate ORDER PER: SH. L. N. GUPTA, M(T) SH. HARNAM SINGH THAKUR, M(J) The present Application has been filed by Smt. Gagandeep Kaur under Section 94 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written submissions dated 08.04.2024, wherein the following submissions are made: 4.1. By filing the earlier application on 01.10.2020 under section 94 of IBC, 2016 bearing CP(IB) No.91/ (CH) of 2021 before this Adjudicating Authority, the Petitioner/ Personal Guarantor was simply misusing the interim moratorium granted under section 96 of IBC, 2016. 4.2 In the above said Application bearing CP (IB) No. 91/ (CH) of 2021, vide order dated 06.05.2022, this Adjudicating Authority had directed Petitioner/ Personal Guarantor to make compliance of the provisions of section 94(4) (5) of the Code. However, the applicant, in order to delay any recovery action by the Bank under any other law including SARFAESI Act 2002, had intentionally not complied with orders of this Adjudicating Authority despite various opportunities, only to prolong and misuse the interim moratorium granted. Therefore, when this matter was listed before this Adjudicating Authority on 01.02.2024, the said Application was dismissed vide order dated 01.02.2024 for non-compliance. 4.3. Thereafter, an IA No.518 of 2024 in CP (IB) No. 91/CHD of 2021 was filed for restoration of the said Insolvency Application filed under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. The Applicant/ Personal Guarantor filed a Written Submission dated 09.04.2024 making the following submissions: 5.1 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. In furtherance of such a liberty granted, the Applicant/ Personal Guarantor has preferred the present application on the very next day i.e., on 29.02.2024. The order is reproduced below: This application has been filed by learned counsel for the applicant seeking restoration of the main Company Petition bearing CP(IB) No. 91(CH) 2021 filed under Section 94(1) of the Code, which was dismissed on 01.02.2024. After arguing sometime, it is stated by learned counsel for the applicant that he may be permitted to withdraw the present petition with liberty to refile the petition under Section 94(1) of the Code as per law. Keeping in view the statement made by learned counsel for the applicant, LA No. 518/2024 is dismissed as withdrawn with liberty aforesaid. 5.2 The Applicant/ Personal Guarantor has placed reliance on the following decisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V. Bengani Udyog Pvt. Ltd. ( The Bengani Case ). The Caveator/Respondent has further contended that the present Application is filed by the Applicant/ Personal Guarantor only with an intention to misuse the Interim moratorium granted under section 96 of IBC, 2016, while already 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. Per contra, the Applicant has contended that the present Application is maintainable in the light of the order dated 28.02.2024 of this Adjudicating Authority, wherein liberty was granted to the Applicant to file a fresh application under section 94(1) IBC, 2016 as per law. In furtherance of such a liberty, the Applicant has preferred the present application. 7. In this backdrop, we would like to refer to the order dated 01.02.2024, which reads thus: It is seen that the present petition was filed in the Year 2021 and vide order dated 06.05.2022, learned counsel for the petitioner was directed to make compliance under Section 94(4) (5) of the Code within four weeks. However, it is seen that from the last few dates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make the Application complete but also did not challenge the order dated 01.02.2024 of this Adjudicating Authority. Hence, in our considered view the order dated 01.02.2024 attained finality. 10. We cannot also be oblivious to the fact that (a) SARFAESI proceedings against the Applicant/Guarantor are pending; (b) the earlier Application No. No. 91/Chd/HP/2021 was filed by the Applicant on 01.10.2020 and he did not bother to complete the application in all respect, which proves the contention of the Caveator/Respondent that the sole objective of filing that Application was to mis-utilize the interim moratorium, which gets triggered on the very date of filing of a Section 94 application, in order to delay the action under SARFAESI Act. 11. All the three judgments as mentioned in para 5.2 above and relied upon by the Applicant do not apply to the facts and circumstances of the present case in as much as none of them pertain to Section 94 or Section 95 of IBC nor there was any issue of misuse of interim moratorium involved. In Venus Sugar Ltd. Vs SASF, application under Section 7 was dismissed for nonprosecution. In the case herein, the application of Section 94 was dismissed for non-c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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