TA Genco Ltd vs Bank Of Baroda & Anr

Heard Shri K. Datta, Learned Senior Counsel for the Appellant.

This Appeal has been filed against the order dated 29.04.2022 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, by which order the Adjudicating Authority has admitted Application under Section 7 of the IBC against ‘SKS Power Generation (Chhattisgarh) Limited’ (Corporate Debtor). The Application under Section 7 was filed by the Bank of Baroda. The Appellant claims to be controlling the two shareholders of the Corporate Debtor. The Appellant filed an Application for intervention before the Adjudicating Authority which was not accepted. After the order passed by the Adjudicating Authority, the Appellant has come up in this Appeal.

In the Appeal, the findings of the Adjudicating Authority regarding debt and default not questioned. What is submitted by Learned Counsel for the Appellant is that litigation between the Corporate Debtor with Indian Bank and Canara Bank, certain amount was deposited in the Court which may be available for settling the dues of the Financial Creditor. He further submits that in view of the judgment of the Hon’ble Supreme Court in “Vidarbha Industries Power Limited vs. Axis Bank Limited- Civil Appeal No. 4633 of 2021” decided on 12.07.2022, the Adjudicating Authority has discretion in either admitting Section 7 Application or rejecting Section 7 Application. He submits that discretion ought to have been exercised by the Adjudicating Authority in rejecting Section 7 Application.

We are of the view that the present is a case where clear debt and default was proved which findings are not even questioned even in this Appeal. The Appellant took time twice to approach the Bank for settlement which has not fructified. We are of the view that the Adjudicating Authority did not commit any error in rejecting the Application under Section 7 of the IBC. The Appeal is dismissed.