ABHIJEET INFRASTRUCTURE LIMITED vs STATE BANK OF INDIA - 2024-02-09

O R D E R

1 In the earlier order of this Court dated 16 January 2024, while recording the submissions of the appellant, the second date in paragraph 2 is corrected to 29 December 2021 instead and in place of 1 February 2022. This correction is made on the basis that the lodgment as recorded in the website of the National Company Law Tribunal is 29 December 2021.

2 The application for amendment of the petition under Section 7 of the Insolvency and Bankruptcy Code1 2016 has been allowed by the order of the National Company Law Tribunal2 dated 8 August 2023. This has been affirmed in appeal by the National Company Law Appellate Tribunal3 on 2 November 2023.

1 “IBC”

2 “NCLT”

3 “NCLAT”

3 In the petition, which was originally filed by the respondent, the date of default was stated to be 30 April 2014. In the application for amendment, it was stated that the account of the Corporate Debtor became a Non- Performing Asset on 30 April 2014, which is the first date of default when the cause of action arose. However, it has been stated in paragraphs 3 and 5 of the application for amendment that:

“3. The petitioner/applicant has made a categoric statement that the petition has been filed within the period of limitation inasmuch as that the balance sheets of the corporate debtor and the income tax returns contain an acknowledgement of debt and a promise to pay. Despite this categoric stand of the corporate debtor, the income tax returns have not been disclosed. There is also no statement in the written objection that the income tax returns do not contain an admission as aforesaid.

5. Having regard to the acknowledgement contained in the balance sheet and the income tax returns or having regard to the proceedings under the SARFAESI Act, 2002, the present petition has been filed within the period of limitation. In this connection, it is pertinent to mention that the time from 15th March 2020 would stand excluded for the period of limitation, in view of the orders pertaining to limitation passed suo motu by the Hon’ble Supreme Court of India. A copy of the order dated 10th January, 2022 is annexed hereto and market with the letter A.”

It is clear from the amendment that the case of the respondent is that though the first default arose on 30 April 2014, the petition under Section 7 is not barred by limitation in view of the subsequent events including the acknowledgements in the balance sheets and the recovery certificate.

4 The NCLAT while affirming the order of the NCLT allowing the amendment has specifically kept the question of limitation open. In that sense, the plea of the appellant that the petition under Section 7 of the IBC is barred by limitation is not prejudiced.

5 Bearing in mind the above circumstances, it is not necessary for the Court to entertain the appeal.

6 All aspects on the question of limitation would be decided by the NCLT. This order merely affirms the correctness of the order allowing the amendment without expressing any opinion on the merits of the plea on limitation.

7 Subject to the above, the Civil Appeal is disposed of.

8 Pending applications, if any, stand disposed of.

….....…...….......…………………..CJI. [Dr Dhananjaya Y Chandrachud] ..…....…........……………….…........J.

[Manoj Misra]

..…....…........……………….…........J.

[Satish Chandra Sharma]

New Delhi;

February 9, 2024 CKB ITEM NO.21 COURT NO.1 SECTION XVII S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal No.559/2024 ABHIJEET INFRASTRUCTURE LIMITED Appellant(s)

VERSUS STATE BANK OF INDIA Respondent(s)

(With IA No.6068/2024-EX-PARTE STAY and IA No.6069/2024-CONDONATION OF DELAY IN REFILING/CURING THE DEFECTS)

Date : 09-02-2024 This appeal was called on for hearing today.

CORAM :

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANOJ MISRA HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA For Appellant(s) Mr. Balbir Singh, Sr. Adv.

Mr. Sandeep Bajaj, Adv.

Mr. Naman Tandon, Adv. Mr. Devansh Jain, Adv.

Ms. Vasudha Chadha, Adv.

Mr. Soayib Qureshi, AOR Mrs. Radha Gupta, Adv.

For Respondent(s) Mr. Sanjay Kapur, AOR Mr. Surya Prakash, Adv.

Mrs. Shubhra Kapur, Adv.

Ms. Mahima Kapur, Adv.

Ms. Divya Singh Pundir, Adv.

UPON hearing the counsel the Court made the following

O R D E R

1 The Civil Appeal is disposed of in terms of the signed order.

2 Pending applications, if any, stand disposed of.

(CHETAN KUMAR) (SAROJ KUMARI GAUR)

A.R.-cum-P.S. Assistant Registrar

(Signed order is placed on the file)