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Judgment
O R D E R
15.04.2024: This Appeal has been filed against an order passed by Adjudicating Authority dated 17.10.2023 by which Section 7 Application filed by the Financial Credit has been admitted.
In this appeal an interim order was passed on 28.11.2023, which is as follows:
“28.11.2023: The Appellant has challenged the Order dated 17th October, 2023 passed by National Company Law Tribunal, Division Bench, Court-II, Kolkata by which an application filed under Section 7 of Insolvency and Bankruptcy Code, 2016 by Financial Creditor has been admitted.
2.Counsel for the Appellant argued that the Corporate Guarantee was invoked on 3rd January, 2019 whereas the Application under Section 7 of the Code has been filed on 24th January, 2023 after period of three years as envisaged under Article 137 of the Limitation Act, 1963 which is itself barred by limitation. It is further submitted that this point has been categorically taken in the written submissions by the Appellant and replied by the Respondent but somehow or other escaped the notice of the Ld. Adjudicating Authority and therefore the issue of limitation could not be addressed. It is submitted that if the petition filed under Section 7 is barred by limitation then no further order can be passed and it deserves to be dismissed.
3.Issue notice to the Respondents in the Appeal as well as Stay Application through Speed Post as well as Email. Requisites along with process fee, if not filed, be filed within two days.
4.At this stage, Counsel for the Appellant has pressed I.A. No. 5533 of 2023 in which prayer has been made for stay. It is submitted that the IRP appointed by the Impugned Order has recused therefore an Application is filed before the Adjudicating Authority for appointment of another IRP. He has prayed that till the next date of hearing, the appointment of IRP may be stayed.
5.In view of the aforesaid facts and circumstances much less the fact that the issue involved goes to the root of the controversy, therefore, issue notice in the application for stay.
6.In the meantime, appointment of the IRP, if not already appointed, shall remain stayed.
7.List this Appeal on 15th January, 2024.
Affidavit has been filed on behalf of the Appellant dated 12.04.2024 bringing on record the settlement with the Financial Creditor. Appellant has annexed the copy of the letter dated 05.03.2024 issued by Financial Creditor accepting the OTS offer.
In view of the OTS having been accepted, we see no reason to continue this appeal and CIRP proceeding against the Corporate Debtor. The order impugned is set aside. Corporate Debtor is freed from CIRP. Appeal is disposed of. Liberty to the Financial Creditor to revive if any such occasion arrived.