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TMI Blog2024 (5) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - 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 Mr. Gursev Singh under Section 94 of the Insolvency and Bankruptcy Code, 2016 read with Rule 6(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency for initiation of Insolvency resolution process ( IR Process ) of the Petitioner, who is the Personal Guarantor to M/s. Ram Hari Motors Private Limited, Ram Hari Auto s Private Limited and Ram Hari Cars Private Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 In the above said petition bearing CP(IB) No. 77/CH/HP/2021, vide order dated 06.05.2022 this Adjudicating Authority had directed Applicant/ Personal Guarantor to make compliance of the provisions of section 94(4) 94(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 the misuse of interim moratorium granted. Therefore, when this matter was listed before this Adjudicating Authority on 01.02.2024, the said company petition was dismissed vide order dated 01.02.2024 for non-compliance. 4.3. Thereafter, an IA No.519 of 2024 in CP (IB) No. 77/CH/HP/2021 was filed for restoration of the said Insolvency petition filed under section 94 of the IBC to its original position. When this IA was listed before this Tribunal on 28.02.2024, the petitioner prayed that he may be permitted to withdraw the said IA for restoration with liberty to refile the Application under Section 94(1) of the Code as per law. Therefore, this Adjudicating Authority dismissed the said IA as withdrawn with liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of such liberty granted, the Applicant/ Personal Guarantor has preferred the present application 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 laves Keeping in view the statement made by learned counsel for the applicant, LA No. 519/2024 is dismissed as withdrawn with liberty aforesaid. 5.2 The Applicant/ Personal Guarantor has placed reliance on the following decisions of the Hon'ble NCLAT: A. Venus Sugar Ltd. Vs SASF, Company Appeal (AT) (Insolvency) No. 1517/2019, where it was held that If the earlier application under Section 7 was dismissed for non-prosecution, it was always open to the Respondent to file fresh application under Section 7. B. Priyal Kantilal Patel v. IREP Credit Capital Pvt. Ltd. and Anr Company Appeal (AT) ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and delaying the recovery proceeding under SARFAESI Act, 2002 and other provisions of law. Per contra, the Applicant has contended that the present petition is maintainable in the light of the order dated 28.02.2024 of this Tribunal, 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. At this stage, 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 of hearing neither did he appear before the Court nor did he comply with the order. On the last date of hearing, he was given one last opportunity to appear before the Court and comply with the order dated 06.05.2022. Valid AFA of the proposed RP has also not been filed for last so many dates of hearing. At this stage, it is pointed out by learned counsel for the Petitioner that he has already filed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 non-prosecution. In the case herein, the application of Section 94 was dismissed for non-compliance of the directions of this Adjudicating Authority. Similarly, in Priyal Kantilal Patel v. IREP Credit Capital Pvt. Ltd. and Anr., the matter related to revival of Section 7 application in terms of consent terms vs. fresh petition and there was no issue of misuse of interim moratorium involved. In Md. Sadique Islam and Ors. v. Niraj Kumar Agarwal and Ors., the appeal was relating to the Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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