Company Appeal (AT) (Insolvency) No. 1411 of 2019 Page 1 of 25

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Company Appeal (AT) (Insolvency) No. 1411 of 2019

[Arising out of Impugned Order dated 03^rd October 2019 passed by the

Hon‟ble National Company Law Tribunal, Cuttack Bench, Cuttack in

C.P.(IB) No.54/CTB/2019]

IN THE MATTER OF:

Ashish Kumar

S/o Rajendra Kumar Jain

22, Prem Pushp, Jal Vihar Colony

Civil Lines, Raipur (CG) - 492001

…Appellant

Versus

1. Mr. Vinod Kumar Pukhraj Ambavat

Resolution Professional

D-511, Kanakia Zillion, Junction of LBS Road

And CST Road, BKC Annexe, Kurla West

Mumbai, PIN – 400070

...Respondent No.1

2. M/s ASREC (India) Limited

Unit No.201, 200A, 202 & 200B, Ground Floor,

Build No.2, Solitaire Corporate Park

Andheri (E) Kurla Road

Mumbai – 400059

...Respondent No.2

Present:

For Appellant

: Mr Anurag, Mr Sushil, Advocates

For Respondent

: Mr R.P. Agarwal, Advocate for R-1

Mr Manish K. Bishnoi, Mr Narendra Singh, Advocates

for R-2

J U D G M E N T

[Per; V. P. Singh, Member (T)]

This Appeal emanates from the Order passed by the Adjudicating

Authority/National Company Law Tribunal, Cuttack Bench, Cuttack in C.P.

(IB) No.54/CTB/2019, whereby the Adjudicating Authority has admitted the

Company Appeal (AT) (Insolvency) No. 1411 of 2019 Page 2 of 25

Application for initiation of Corporate Insolvency Resolution Process („CIRP‟)

against the „Corporate Debtor‟, filed under Section 7 of the Insolvency and

Bankruptcy Code (in short „I&B Code‟) on 03^rd October, 2019 in the case of

M/s ASREC (India) Limited Vs. Mr R.K. Jain Construction (India) Pvt. Ltd.

The parties are represented by their original status in the company petition

for the sake of convenience.

The Appellant has filed this appeal mainly on two grounds, firstly on

limitation; secondly, the order has been passed ex-parte; which is illegal,

arbitrary, and passed mechanically through a non-speaking order.

2.

Brief facts of the case are as follows:

The „Corporate Debtor‟ was granted a loan by the Allahabad Bank in

2008. The loan amount was extended/increased until the year 2010. The

account was declared NPA by the Bank on 29^th August 2012. Notice under

Section 13(2) of the SARFAESI Act was issued against the Corporate Debtor

on 03^rd October 2012, after that, the notice under Section 13(4) of the

SARFAESI Act was issued on 05^th December 2012. The Adjudicating

Authority has observed that:

“the Respondent/Corporate Debtor was served notice. However, there

were no representations. Notice was also taken by way of publication

dated 20^th August 2019 in English newspaper “Central Chronicle” and

Hindi newspaper “Swadesh”. However, there was no representation for

the Corporate Debtor. Hence, called absent & set ex-parte on 04^th

September 2019.”

(Quoted verbatim)

Company Appeal (AT) (Insolvency) No. 1411 of 2019 Page 3 of 25

3.

It is stated that the Appellant had availed the loan facility way back in

the year, 2008 and the said facility was enhanced time and again till the

year, 2010. On 29^th August 2012, the account of the corporate debtor was

classified as NPA, and Allahabad Bank issued a notice under Section 13(2)

of the SARFAESI Act on 03^rd October 2012.

“Regarding the ex-parte order, it is stated by the Respondent financial

creditor, that there was proper service on the Corporate Debtor, by the

publication of notice in two newspapers. Copy of the order sheet of the

Adjudicating Authority dated 17^th June 2019, 02^nd July 2019, 06^th

August 2019 and 04^th September 2019 is annexed with the Reply by

the respondent. On perusal of the order sheet dated 17^th June 2019,it

appears that the Adjudicating Authority has noted th