JUDGEMENT

(07^th January, 2022) Ashok Bhushan, J. 1. This Appeal has been filed against the order dated 16.08.2021 passed by the Adjudicating Authority (National Company Law Tribunal), New Delhi Bench-II in IA. 445/2021 filed by the Appellant. Brief facts of the case and sequence of the events necessary to be noticed for deciding this Appeal are:

Company Appeal (AT) (Ins.) No. 966 of 2021 An Application under Section 7 of the Insolvency and Bankruptcy Code, 2016 (“I&B Code” for short) was filed by one Shri Amit Kumar Malik against ‘Kindle Developers Pvt. Ltd.’ (Corporate Debtor) being (IB) 470(ND)/2017. Notice was issued by the Adjudicating Authority on 20.11.2017. The Adjudicating Authority on 15.01.2018 recorded that Respondents have been duly served but no one is present on behalf of the Respondents. Respondents were ex-parte proceeded. On 30.01.2018, the arguments were heard in the Application. On 09.03.2018, Application was listed for pronouncement of the order before the Adjudicating Authority and on 09.03.2018, order was pronounced by the Adjudicating Authority admitting the Application under Section 7. One Mr. Yogesh Kumar Tyagi was appointed as Interim Resolution Professional.

Interim Resolution Professional made public announcement on 03.08.2018. The Appellant before us filed his claim in Form-B on 09.07.2019. I.A No. 1442 of 2020 was filed by the Appellant praying for direction to the Resolution Professional to verify, entertain and accept the claim of the Appellant which Application was disposed off by the Adjudicating Authority on 26.07.2021 directing the Resolution Professional to consider the claim of the Applicant (Appellant) on merits. In the meantime, by an order passed on 30.07.2018, earlier Interim Resolution Professional was changed and one Mr. Anurag Nirbhay was appointed as the Interim Resolution Professional. An Application I.A. No. 445 of 2021 was filed by the Appellant praying for seeking amendment in earlier Application I.A. No. 1442 of 2020. In I.A 445 of 2021, Applicant prayed that in his earlier Application he may be permitted to add certain paragraphs. By Company Appeal (AT) (Ins.) No. 966 of 2021 averment which was sought to be added the Appellant claim that he is an allottee in pursuance of Memorandum of Understanding dated 19.04.2018 and the claim of the Appellant should be verified as allottee for which Form CA was annexed with the Application. The Application I.A No. 445 of 2021 came for consideration before the Adjudicating Authority who by order dated 16.08.2021 has rejected the said Application. Aggrieved by the said order, this Appeal has been filed.

2. Shri Amar Dave, Learned Counsel for the Appellant submitted that the Application filed by the Appellant for carrying out amendments in his earlier Application has wrongly been rejected. It is submitted that the Appellant although had earlier filed his claim as Operational Creditor but in view of the Memorandum of Understanding dated 19.04.2018, he had become allottee and was Financial Creditor of the Corporate Debtor and his claim ought to have been verified as Financial Creditor. He further submitted that although Application under Section 7 was admitted on 09.03.2018 but the said order was uploaded only on 22.06.2018. The copy of order was neither sent to Interim Resolution Professional nor to any of the parties. Hence, no one knew about the initiation of the Corporate Insolvency Resolution Process proceedings till 22.06.2018. It is submitted that the Memorandum of Understanding dated 19.04.2018 thus cannot be said to be violating Section 14 of the ‘I&B Code’. It is submitted that in the present case, Corporate Insolvency Resolution Process shall be treated to have commenced only on 22.06.2018. It is submitted that in the publication which was made by the Interim Resolution Professional in pursuance of Section 7 order, the date of Company Appeal (AT) (Ins.) No. 966 of 2021 commencement of Corporate Insolvency Resolution Proc