Rolta Pvt. Ltd. Vs Varanium Cloud Ltd. (NCLAT Delhi)
Conclusion: Merely the fact that the liberty was given to the Appellant by the court and he failed to pursue the first appeal filed against the order dated 10.04.2023 did not mean that the Appellant could change the date of default at its convenience. It was obliged to use the original application, citing 04.02.2021 as the date of default, even though they knew it was within the Section 10A cut-off period, making the Section 7 application unmaintainable.
Held: Appellant had distributed out a loan of Rs. 1.5 Cr. to the corporate debtor/respondent, in three installments of Rs. 50 Lac each. It claimed Rs. 1.50 Cr. plus interest of Rs. 1,34,73,905, the total amount owed was Rs. 2,84,73,905 under Rule 4(1) of IBC (Application to Adjudicating Authority) Rules, 2016. Tribunal dismissed this case on the grounds that the petition was not maintainable because the date of default, which was 04.02.2021 in part IV, fell within the time frame specified in Section 10A. According to the Respondent, the Section 7 application could not be upheld under Section 10A of the Code. According to the appellant’s previous application, non-payment within five days of the recall notice dated 30.01.2021 was the reason for the alleged default. However, the appeal against this ruling was abandoned after the application was rejected by an order. The order became final between the parties because it was not overturned. Appellant argued that in Part IV of both applications, appellant unintentionally stated the date of default as 04.02.2021. Appellant contested the order; all arguments were left open, and the appeal was withdrawn with authorization to file a new petition. CP (IB) No. 883/MB/2023 was subsequently filed, but Tribunal unlawfully rejected it. Furthermore, it was argued that Appellate Tribunal should not have rejected the application on the grounds that it was prohibited by res judicata and order 2 rule 2 of the Civil Procedure Code (CPC) since it had granted the right to file a new petition through a decision. Last but not least, it was argued that Tribunal had rejected the first petition not on the basis of merit but rather because it was forbidden by Section 10A of the Code, meaning that the res judicata principle would not be applicable. It was held that merely the fact that the liberty was given to the Appellant by the court and he failed to pursue the first appeal filed against the order dated 10.04.2023 did not mean that the Appellant could change the date of default at its convenience alleging that after default occurred on 04.02.2021, the Appellant had served reminder to the Respondent. While dismissing the appeal, the bench concluded that the appellant never tried to change the pleadings before the Tribunal, in contrast to the Streamcast case, which was also submitted by the appellant. They continued to use the original application, citing 04.02.2021 as the date of default, even though they knew it was within the Section 10A cut-off period, making the Section 7 application unmaintainable.
