JUDGEMENT

(Date: 24.2.2023) [Per.: Dr. Alok Srivastava, Member (Technical)]

1. The present appeal has been filed by the Appellant under section 61 of the Insolvency and Bankruptcy Code, 2016 (in short ‘IBC’) being aggrieved by the order dated 19.8.2019 (in short Impugned Order I) whereby an application under section 7 of the IBC was admitted by the Adjudicating Authority and order dated 20.2.2020 (Impugned Order-II) whereby the Adjudicating Authority (National Company Law Tribunal, Kolkata) has ordered for liquidation of the corporate debtor. Both the Impugned Orders have been passed by the Adjudicating Authority in CP (IB) No.1111/KB/2018.

2. It is the Appellant’s case that on an application under section 7 of IBC filed by State Bank of India (Respondent No.1), it was admitted by the Adjudicating Authority vide Impugned Order – I and this order was challenged by way of Revision Petition under Article 227 of the Constitution of India being CO No. 1257 of 2020 before the Hon’ble High Court of Calcutta, wherein the Hon’ble High Court vide order dated 15.10.2020 allowed the Revision Petition thereby setting aside the initiation of Corporate Insolvency Resolution Process (in short ‘CIRP’) against the corporate debtor.

The Appellant has further stated that Respondent No. 1 State Bank of India thereafter challenged the said order of the Hon’ble High Court of Calcutta through a Special Leave Petition Civil Appeal No. 323 of 2021, wherein the Hon’ble Supreme Court set aside the order of Hon’ble High Court of Calcutta and granted liberty to the Appellant to prefer an appeal before NCLT within four weeks of the order of the Hon’ble Supreme court. The present appeal has been filed by the Appellant in pursuance of the liberty granted by Hon’ble Supreme Court, wherein the Impugned Order-I and Impugned Order-II have been challenged.

3. The Appellant has further stated that the date of default as stated in section 7 application by State Bank of India is 6.8.2012, which is the date when the account of the corporate debtor was classified as a non performing asset (in short NPA). Subsequent to classification of the account as NPA, State Bank of India filed OA No. 392 of 2014 before the Debt Recovery Tribunal, Kolkata for recovery of its debt amounting to Rs.100,52,94,787.26 and this proceeding before the Debt Recovery Tribunal is still pending adjudication. The Appellant has further stated that the corporate debtor filed Civil Suit being CS No. 191 of 2014 before the Hon’ble High Court of Calcutta praying for a declaration that the account of the corporate debtor was declared as NPA in an illegal manner and the corporate debtor also sought damages to the tune of Rs.

100 crores and a decree of Rs.10 crores towards the excess interest charged by the Respondent No. 1.

4. The Appellant has further stated that the corporate debtor has mentioned the debt of the State Bank of India in its balance sheet for the financial years 2014-2015, 2015-2016 and 2016- 2017 in accordance with the statutory requirements, but the mention of such debt is not unequivocal and the auditor’s report attached with the balance sheet specifically state that the said debt is disputed in view of the pendency of the Civil Suit before the Hon’ble High Court of Calcutta. The Appellant has also stated that the date of the NPA being 6.8.2012 and the fact that the dispute was raised by the Appellant/corporate debtor in 2014 regarding the illegal declaration of the corporate debtor’s account as NPA, the section 7 application is clearly barred by limitation and therefore, the initiation of CIRP as ordered in Impugned Order-I should be quashed and consequently the order for liquidation of corporate debtor vide Impugned Order-II is also ab-initio null and void and should also be quashed.

5. We heard the arguments of the Learned Counsels for both the parties and perused the record.

6. The Learned Counsel for the Appellant has argued that the account of the corpor