COURT-III

Under Section 60(5) of Insolvency and Bank

Filed by

Catalyst Trusteeship Ltd

Applicant/Financial Creditor

Vs.

Marvel Realtors and Developers Limited

…Respondent/Corporate Debtor

In the matter of

Catalyst Trusteeship Ltd

…Financial Creditor

Vs.

Marvel Realtors and Developers Limited

….Corporate Debtor

Order delivered on: 30.04.2024

Coram:

MS. LAKSHMI GURUNG, HON’BLE MEMBER (J)

SH. CHARANJEET SINGH GULATI, HON’BLE MEMBER (T)

For the Financial Creditor: Adv. Shyam Kapadia a/w Adv. Yash Dhriva i/b

MDP Partners

For the Corporate Debtor: Adv. Amir Arsiwala a/w Adv. Farzeen C. Pardiwalla

Per: LAKSHMI GURUNG, MEMBER (J)

ORDER

1. The present application has been filed by Catalyst Trusteeship Limited (“Applicant / Financial Creditor”) seeking amendment of the Company Petition wherein the date of default is sought to be inserted in Part-IV of the petition as 05.06.2022.

2. The Applicant submits that the date of default has not been mentioned in Part-IV of the Company Petition due to inadvertence and not done intentionally or deliberately.

3. The Corporate Debtor has filed reply stating as follows:

3.1. The petitioner is seeking the amendment which would completely modify the very nature of the present case which is impermissible under the law. Corporate Debtor further submits that the perusal of un-amended Part-IV of the petition shows that the Applicant has admitted that the date of default as

31.12.2020.

3.2. The report of information utility shows that the date of default is 31.12.2020. The present application has been preferred at a belated stage and is an afterthought.

3.3. The applicant allegedly claims to have missed out on mentioning the date of default under Part-IV of the main Company Petition. This statement is false as the petition under Part-IV states that the amounts became due for the first time, in respect of the principal and interest for the quarter ended on 31.12.2020. It was only after the CD raise the objection of maintainability of the petition being barred under Section 10A of the Code.

3.4. That major amendment has been sought without actually substantiating the circumstances due to which Applicant/Petitioner was unable to mention the alleged date of default at the time of drafting and filing of the petition.

4. Heard Ld. counsel for the parties and perused the record.

5. The main ground for opposing the present application is that by inserting the date of default the applicant is changing the very nature of the present case which is legally impermissible. It is the contention of the Respondent is that the amendment is moved after filing of the reply pointing out that the petition is barred by Section 10A of the Code, merely to overcome the maintainability issue raised by the Corporate Debtor.

6. The applicant submits that the provisions of Code of Civil Procedure, 1908 (CPC) are not applicable to the proceedings under IBC. Even under CPC, Order-VI Rule-17 of CPC permits the Court at any stage to allow amendments liberally.

7. Considering the rival contentions of the parties, we are of the considered view that provisions of CPC are not strictly applicable to the proceedings before this Tribunal, which is constituted under Section 408 of the Companies Act, 2013 Section 424 of Companies Act, 2013 relating to procedure before the Tribunal is reproduced below:

Section 424 “(1) The Tribunal and the Appellate Tribunal shall not, while disposing of any proceeding before it or, as the case may be, an appeal before it, be bound by the procedure laid down in the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice, and, subject to the other provisions of this Act 1[or of the Insolvency and Bankruptcy Code, 2016 (31 of 2016)] and of any rules made hereunder, the Tribunal and the Appellate Tribunal shall have power to regulate their own procedure.”

8. This tribunal is guided by the principles of natural justice subject to the provisions of IBC. There is no bar under IBC in allowing amendment of the peti