BEFORE THE NATIONAL COMPANY LAW APPELLATE

TRIBUNAL AT NEW DELHI

APPELLATE JURISDICTION
COMPANY APPEAL (AT) (Insolvency) NO. ____ 2023
IN THE MATTER OF:
SARWAN KUMAR … Appellant
VS
C.S. HOSPITALITY AND MANAGEMENT
SERVICES PVT. LTD. … Respondent

MASTER INDEX
VOLUME-I
S.no Particulars Pg. No.
.
1. Notice of Motion 1

2. Memo of Parties 2-3

3. Synopsis and List of Dates & Events 4-6

4. MEMORANDUM OF APPEAL PREFERRED 7-58

BY THE APPELLANT UNDER SECTION 61 OF
THE INSOLVENCY AND BANKRUPTCY
CODE, 2016 AGAINST ORDER DATED
27.09.2022 PASSED BY THE LD.
ADJUDICATING AUTHORITY, NCLT,
KOLKATA BENCH IN TP (IBC)/1(KB)2022,
T.A.(IBC)/1(KB)2022, T.A. (IBC)/1(KB)2022 AND
ORDER DATED 08.10.2021 IN TP 258 OF 2019
IN CP (IB) 111/7/NCLT/AHM/2018 WITH INV.
P. 53 OF 2018, INV. P 54 OF 2018 AND IA 60 OF
2020 PASSED BY THE HON’BLE NATIONAL
COMPANY LAW TRIBUNAL, INDORE
BENCH, AT AHMEDABAD (TOGETHER
REFERRED TO AS IMPUGNED JUDGMENT).

5. 59-62

6. 63

7. 64-174

8. 175-
203
 9. 204-
310
10. 311-
453

11. 454-
702

VOLUME -V
12. IA ____ of 2022 966-
Application seeking exemption from filing true 969
typed copies of dim/ illegible annexures and certified
copy of the Impugned order, under Rule 31 r/w Rule
11 of the NCLAT Rules, 2016 along with affidavit
13. IA __ of 2022 970-
Application seeking ad-interim stay of impugned 974
Judgment along with affidavit
14. Caveat Clearance letter 975

15. VAKALATNAMA 976-

978
16. Proof of Service 979

17. Proof of Payment 980-

982
Filed by:

Abhishek Puri / Surbhi Gupta

(Counsel for the Appellant)
A-18, 3rd Floor,
Jangpura Extension,
New Delhi 110014.
Email:- registrardel@thelawpoint.com
Phone: +91 11 43508322
FILED ON:

NEW DELHI
 BEFORE THE NATIONAL COMPANY LAW APPELLATE
TRIBUNAL AT NEW DELHI
APPELLATE JURISDICTION
COMPANY APPEAL (AT) (Insolvency) NO. ____ 2023
IN THE MATTER OF:
SARWAN KUMAR … Appellant
VS
C.S. HOSPITALITY AND MANAGEMENT
SERVICES PVT. LTD. … Respondent

NOTICE OF MOTION
TO,
Registrar,
National company law appellate Tribunal,
MTNL Building, 9, CGO Complex, Lodhi Road,
New Delhi -110003
The enclosed appeal in the aforesaid matter is being filed on behalf of the
Appellant and is likely to be listed on 20.10.2022 or any other date
thereafter. Please take note, accordingly. In support of the Appeal, a duly
signed affidavit of the Authorised representative of the Appellant company
has been attached.
Fees has been paid as prescribed in the Rules.

Filed by:-

Abhishek Puri / Surbhi Gupta

(Counsel for the Appellant)
A-18, 3rd Floor,
Jangpura Extension,
New Delhi 110014.
Email:- registrardel@thelawpoint.com
Phone: +91 11 43508322
FILED ON:

NEW DELHI
 BEFORE THE NATIONAL COMPANY LAW APPELLATE
TRIBUNAL AT NEW DELHI
APPELLATE JURISDICTION
COMPANY APPEAL (AT) (Insolvency) NO. ____ 2023
IN THE MATTER OF:
SARWAN KUMAR … Appellant
VS
C.S. HOSPITALITY AND MANAGEMENT
SERVICES PVT. LTD. … Respondent

MEMO OF PARTIES
1. Entegra Limited
Niranjan 99 Marine Drive
Mumbai – 400002
…APPELLANTS

Versus
1. Shree Maheshwar Hydel Power Corporation Ltd.
Through Interim Resolution Professional,
Apoorv Sarvaria,
Registered office at:
Abhayanchal Parisar, Post Mandaleshwar
Mandelshwar – 451221, Madhya Pradesh
Address for communication: Suite No. 1, 19 Park Area,
Karol Bagh, Opposite Ajmal Khan Park, Central, NCT of
Delhi-110005
Email ID: cirp.shreemaheshwar@gmail.com

2. Power Finance Corporation Ltd.

Urjanidhi, 1, Barakhamba Lane,
Connaught Place,
New Delhi 110001
….RESPONDENTS
Filed by:-

Abhishek Puri / Surbhi Gupta

(Counsel for the Appellant)
A-18, 3rd Floor,
Jangpura Extension,
New Delhi 110014.
Email:- registrardel@thelawpoint.com
Phone: +91 11 43508322
FILED ON:
NEW DELHI
 BEFORE THE NATIONAL COMPANY LAW APPELLATE
TRIBUNAL AT NEW DELHI
APPELLATE JURISDICTION
COMPANY APPEAL (AT) (Insolvency) NO. ____ 2023
IN THE MATTER OF:
SARWAN KUMAR … Appellant
VS
C.S. HOSPITALITY AND MANAGEMENT
SERVICES PVT. LTD. … Respondent

SYNOPSIS
The present Appeal is preferred by the Appellant for challenging the Order dated
27.09.2022 passed by the Ld. Adjudicating Authority, NCLT, Kolkata Bench in TP
(IBC)/1(KB)2022, T.A.(IBC)/1(KB)2022, T.A. (IBC)/1(KB)2022 upon reference and
Order dated 08.10.2021 in TP 258 of 2019 in CP (IB) 111/7/NCLT/AHM/2018 with
Inv. P. 53 of 2018, Inv. P 54 of 2018 and IA 60 of 2020 passed by the Ld.
Adjudicating Authority, NCLT, Indore Bench, at Ahmedabad (together referred to as
“Impugned Judgment”), whereby two judges of the Adjudicating Authority have
erroneously admitted the petition filed u/s 7 of the Insolvency and Bankruptcy Code,
2016 (hereinafter referred to as “IBC”/ “Code”) against Respondent No. 1 by
Respondent No. 2, despite:-
A. Firstly, the Respondent No. 2 having neither pleaded nor proved any case of
“debt due and payable” by Respondent No. 1; nor having pleaded or proved
any case of “default” for the debt which has become due and payable having
not been paid by the Corporate Debtor in terms of Section 3(12) of the Code;
and furthermore, without the Respondent No. 2 having even mentioned any
date of default as statutorily mandated under Form 1.
B. Secondly, the Impugned Judgment has been passed without considering that
the IBC Petition filed by Respondent No. 1 was hopelessly barred by
limitation as the Respondent No. 1 Company had been declared an NPA on
31.03.2012 and therefore, in view of the law laid down by the Hon’ble
Supreme Court in Gaurav Hargovindbhai Dave v Asset Reconstruction Co
(India) Ltd. [2019 10 SCC 572], the limitation of three years expired on
31.03.2015. No pleading or proof had been adduced by Respondent No. 2 in
its IBC Petition showing any voluntary or conscious acknowledgment of debt
prior to the expiry of limitation in terms of Section 18 of the Limitation Act.
The Hon’ble Supreme Court in Babulal Vardharji Gurjar v. Veer Gurjar
Aluminium Industries (P) Ltd., (2020) 15 SCC 1 has clearly held that where
no pleadings or evidence has been adduced in the Insolvency Petition
regarding acknowledgement under Section 18 of the Limitation Act, the
 submissions made at a later stage or in the written submissions cannot be
allowed.
C. Thirdly, even otherwise, the present case is a fit case for exercise of discretion
by the Ld. Adjudicating Authority for rejecting the Petition filed by
Respondent No. 2 in view of the ratio laid down by the Hon’ble Supreme
Court in Vidarbha Industries Power Ltd. vs. Axis Bank Ltd, [ (2022) 8 SCC
352] and in Phoenix ARC Pvt. Ltd. v Spade Financial Services Ltd. and ors.
[ 2021 SCC Online SC 51] as also by exercising its powers u/s 65 of the I&B
Code. The amounts claimed in Part IV and V of the Form I in the
insolvency Petition u/s 7 of the Code by Respondent No. 2 are actually sham
and collusive transactions, since PFC was in control of affairs and
management of the Respondent Company since 2005 and its TRA Accounts
and itself chose not to disburse funds and complete the Hydel Power Project
despite financial closure having been achieved on 30.06.2005 and three
turbines being ready for operationalisation in 2010. Thereafter, it is an
established fact that in order to protect its erring nominees on the board of
Respondent No. 1 Company and to protect itself from actions under the
Companies Act, pursuant to an RoC Report which brought out the
mismanagement of affairs of Respondent No. 1 Company by Respondent
No. 2, the Respondent No. 2 filed a Petition u/s 241-242 to pass the blame
for such mismanagement on to the original promoters (Appellant herein).
The RoC Report dated 23.09.2016, Order dated 15.06.2017 by the Hon’ble
NCLT in in CP 15 of 2017 and vide the Judgment dtd. 12.03.2018 passed by
the Hon’ble NCLAT in Company Appeal (AT) No. 237 of 2017 read with
the Order dtd. 18.05.2018 passed by the Hon’ble Supreme Court in Civil
Appeal No. 5028 of 2018, arrived at concurrent findings that the Respondent
No. 2 had been in complete control of the management affairs and the
financial affairs of the Respondent Company since 2005 and the movement
of funds from the TRA account was also regulated and controlled by them.
While in control of the Respondent No. 1 Company, Respondent No. 2 had
illegally and in contravention of the provisions of the Companies Act, 2013,
made illegal Amendments to the Articles of Association of the Respondent
No. 1 Company and illegally stripped the Promoters of their shareholding
and their voting rights and management rights and had illegally invoked the
pledged shares of the promoters and converted subordinate debt into equity.
The Hon’ble NCLAT also found that this caused a scenario where no new
investor or equity could be brought in. Meanwhile, the Promoters including
Appellant herein on the strength of the findings rendered by the Hon’ble
NCLT filed a petition under Section 241-242 of the Companies Act, 2013
[ bearing no. CP 175/ 2017] against the Respondent No. 2 and other Lenders
 before the Hon’ble NCLT, Ahmedabad for various acts of mismanagement
of affairs including mismanagement of financial affairs of the Respondent
No. 1 Company in which various actions against erring nominees /
employees of Respondent No. 2 have been sought and claims of around
Rs.16,607.77 Cr. have been preferred as compensation for mismanagement
of affairs and to enable completion of the Project which could not be
completed on account of financial mismanagement by PFC and other
Lenders. Despite declaration of the Respondent No. 1 Company as an NPA
in 31.03.2012 and inspite of RoC findings that the shareholding was
acquired by Respondent No. 2 in violation of Companies Act and that the
actions of Respondent No. 2 were not as envisaged in the binding
recommendations by the High Level Committee, the Respondent No. 2
chose to execute another Additional Loan Agreement dated 27.04.2017 and
the pre-condition to said Addl. Loan Agreement was that Respondent No. 2
and the lenders retained the illegal shareholding which had been acquired by
them and continued to maintain control of the Company and continued to
have complete control over sanction and disbursal of funds. Respondent No.
2 sitting in the management of the Company and having control of the BoD
thereafter caused execution of the said Agreement by Respondent No. 1
company with the Lenders. Thereafter, when repeated reports and judgments
were being passed against it, Respondent No. 2 in collusion with the
management of the Respondent No. 1 Company which has been appointed
by it, intentionally and fraudulently withheld funds towards monthly interest
payments of a few lakhs despite the same having already been sanctioned by
it vide the Notice of Drawl dated 02.05.2017 in order to engineer a situation
of default. Anticipating that the NCLAT judgment would also be passed
against it and that the adjudication of the pending petition under Section 241-
242 of the Companies Act, 2013 [ bearing no. CP 175/ 2017] would entail
severe consequences against it and its nominees and employees, Respondent
No. 2 thereafter issued a Loan Recall Notice dated 17.01.2018 seeking to
recall the entire loan amounts on the basis of this engineered default in
payment of interest component, despite the fact that the repayment start date
for the additional facility of Rs. 600 Crores disbursed under the Agreement
was only 15.07.2020.
D. And Fourthly, in spite of the established fact that Respondent No. 2 had
complete control over the affairs of the Respondent No. 1 Company and over
the BoD since 2005, and hence, Respondent No. 2 was effectively the
Promoter of Respondent No. 2 Company in terms of Section 2(69)(b) and
2(69) (c) of the Companies Act, 2013 and further was a Corporate Applicant
in terms of Section 5(5) of the Code. Despite the requirement in the Code that
a Corporate Applicant ought to file the Petition u/s 10 of the Code, the
Respondent No. 2 knowing fully well that no special resolution would be
passed by 2/3rd majority of shareholders of the Respondent No. 1 Company in
an AGM as per Section 10(3)(c) of I& B Code read with Section 114 of the
Companies Act, maliciously and fraudulently and in contravention with the
mandate of the Code filed a Petition u/s 7 of the Code and on this ground
alone, its petition u/s 7 ought to have been rejected. It is submitted that the
Hon’ble Supreme Court in Embassy Property Developments Pvt. Ltd. v
State of Karnataka [ 2019 SCC Online SC 1542 at Para 49, 51, and 53] in
a case wherein a person was acting on behalf of the Company before various
fora and authorities and thereafter, sought to file an Insolvency Petition in the
guise of a “Financial Creditor”, held that this “objection is well-founded” and
if the CIRP had been initiated by one and the same persons taking different
avatars the Hon’ble NCLT ought to adjudicate upon this fraud in terms of
Section 65 of the Code. In view of the real nature of the present transactions, it
is submitted that these collusive loan agreements, under which PFC and
Lenders lent money while wearing the hat of a “Lender”; and then PFC itself
through the Lender-led management and BoD of the Respondent No. 1
Company accepted these Loans and signed Loan Agreements while wearing
the hat of the “Borrower” and thereafter, completely controlled the flow and
utilization of these loan amounts, cannot be deemed to constitute a “Financial
Debt” and the Lenders herein cannot be deemed as “Financial Creditors” in
view of the law laid down by the Hon’ble Supreme Court in Phoenix ARC
Pvt. Ltd. v Spade Financial Services Ltd. and ors. [ 2021 SCC Online SC
51].

In Re: Order dated 08.10.2021 in TP 258 of 2019 in CP (IB)

111/7/NCLT/AHM/2018 with Inv. P. 53 of 2018, Inv. P 54 of 2018 and IA
60 of 2020 passed by the Ld. Adjudicating Authority, NCLT, Indore
Bench, at Ahmedabad

In view of the arguments made by the Appellant including the ones set out
above, the Hon’ble Technical member of NCLT, Indore Bench, at
Ahmedabad vide Order dated 08.10.2021 was pleased to dismiss the IBC
Petition filed by the Appellant, inter-alia, holding that “TP 258 of 2019 in CP
(B) 111 of 2018 stands dismissed, being an instance of malicious initiation
of insolvency proceedings and also on account of debt not being due and
payable as on the date of issue of notice of recall”; and furthermore, was
pleased to allow the Applications filed by the Appellant bearing No. IA 53/
2018 and IA 60/2022. However, the Hon’ble Member (Judicial) of NCLT,
 Indore Bench, at Ahmedabad vide Order dated 08.10.2021 in TP 258 of 2019
in CP (IB) 111/7/NCLT/AHM/2018 with Inv. P. 53 of 2018, Inv. P 54 of 2018
and IA 60 of 2020 erroneously held that:
(a) Despite liberty granted by the Hon’ble Bench to the Appellant Promoters
vide Order dated 13.03.2018 to file its objections which order was not
challenged by Respondent No. 2, the Intervention Application filed by the
Appellant deserves to be rejected.
(b) The Hon’ble Judicial Member incorrectly observed that the disbursal of
debt under the loan agreement was “not disputed” despite extensive
arguments having been made by the Appellant that almost 42% of funds
from the TRA Accounts were diverted by PFC towards interest in
contravention with the Loan Agreements and sanction letters and this fact
stands established by the Judgment dtd. 12.03.2018 passed by the Hon’ble
NCLAT in Company Appeal (AT) No. 237 of 2017. Furthermore, it had
been established from the records by the Appellant and was an admitted
fact that despite having sanctioned disbursal under the Additional Loan
Agreement, the disbursal towards interest was withheld by Respondent
No. 2. This act was done by Respondent No. 2 fraudulently and in
collusion with the management of Respondent No. 1 only to manufacture a
situation of default under the Additional Loan Agreement, so that the
illegal loan recall notice could be issued and IBC Proceedings could be
initiated fraudulently and maliciously by Respondent No. 2, to save its
employees, and nominees from the consequences of actions under the
Judgment dtd. 12.03.2018 passed by the Hon’ble NCLAT in Company
Appeal (AT) No. 237 of 2017, from SFIO and RoC Investigation and from
the consequences of the reliefs sought by the Appellant in its Petition
under Section 241-242 of the Companies Act.
(c) The Hon’ble Judicial Member thereafter, incorrectly observed that despite
the conduct of Respondent No. 2 which admittedly led to the default, the
same cannot be adjudicated under Section 7 of the I&B Code.
(d) The Hon’ble Judicial Member further incorrectly relied upon the
statements made in the Balance Sheet of the FY 2013-2014 which
document was adduced by the Respondent No. 2 for the first time in its
written submissions dated 04.08.2021 without the same having ever been
pleaded or filed along with its IBC Petition. Even otherwise, the
statements were made in the said Balance Sheet of the FY 2013-2014
while the Respondent No. 1 company and its management and BoD was
completely under the illegal control of Respondent No. 2 and hence, the
said statements in the Balance Sheet cannot per-se be relied upon since
these are not voluntary or conscious acknowledgements as is required in
 law. The Hon’ble Judicial Member further incorrectly relied upon the
supposed acknowledgement made in meeting of the BoD in 29.09.2015
(after limitation had already expired) and on the date of default under the
Additional Loan Agreement (despite NPA being declared in 2012 and
despite the fact that said Addl. Loan Agreement was per-se void-ab-initio
and illegal and the default under the said Additional Loan Agreement was
fraudulently and collusively manufactured by Respondent No. 2). On the
basis of such incorrect reliance of facts which had neither been pleaded nor
proved, the Hon’ble Judicial Member incorrectly arrived at the finding
that, the said IBC Petition filed by Respondent No. 2 in 2018 despite
declaration of NPA in 2012 was within limitation. In fact, the said finding
is in itself contradictory to the finding arrived at by the Hon’ble Judicial
Member in the order dated 18.10.2021 whereby it has been held that:
“43. There is gross continuous negligence and callousness on part of
applicant alongwith GOMP, Ministry of Power and Finance, who all have
collectively infused money and/or stood as guarantors to lenders time and
again in the name of saving the project but have miserably failed to
protect their interest & take any action for more than one and half
decade, treating the exchequer's money in most disgusting manner
without being accountable or responsible to it. Without shying away and
any hesitation it is required to reprimand the GOMP and Ministry of
Power and Finance equally or more, than any other party. The initiative
in the name of floating a project for Hydroelectric Power Generations for
the betterment of poor farmers and then merely remaining spectator to its
death, at behest of various other elements including many Financial
Creditors, cannot be taken lightly-as it has led to financial
disaster.”(emphasis supplied)

(e) Despite the established findings of the Hon’ble NCLAT vide Judgment
dtd. 12.03.2018 passed by the Hon’ble NCLAT in Company Appeal (AT)
No. 237 of 2017 and despite minutes of various board meetings and
admitted conduct of Respondent No. 2 of withholding sanctioned amounts
only to manufacture and engineer a default, the Hon’ble Judicial Member
in ignorance of these materials placed on record arrived at the erroneous
finding that an Application under Section 65 by Promoters (Appellants
herein) is not maintainable and that no such fraudulent intention or
malicious intent has been proved.
(f) The Hon’ble Judicial Member at Para 43-45 has wrongly placed the blame
upon the Promoters/ Appellant herein and has incorrectly termed the issue
of who is in control of the Respondent No. 1 company/ the project as a
mere “technical issue”, despite the fact that the Promoters pumped more
than 600 crores into this Project, and have been repeatedly endeavoring to
take control of the affairs of Respondent No. 1 company/ Project , and
have been seeking implementation of the Judgment dtd. 12.03.2018
 passed by the Hon’ble NCLAT in Company Appeal (AT) No. 237 of 2017
as confirmed by the Hon’ble Supreme Court of India and furthermore,
have also been seeking restart of the Project, all of which endeavors/
actions have been repeatedly thwarted by the Respondent No. 2 for
reasons best known to them.
(g) The Hon’ble Judicial Member further arrived at the erroneous finding that
“48. It is evident from the record that the application has been filed on the
proforma prescribed under Rule 4 of the Insolvency and Bankruptcy
(Application to Adjudicating Authority) Rules, 2016 read with Section 7 of
IBC and is complete. Evidently, a default has occurred and the
application under Section 7 is complete.” Glaring infirmities in the IBC
Petition of Respondent No. 2 had been pointed out in the pleadings, in the
course of the proceedings as also in the written submissions filed by the
Appellant including the fact that there is no pleading or averment in the
Insolvency Petition regarding “date of occurrence of default” as mandated
under Part IV – Para 2 of Respondent No. 2’s Insolvency Petition, despite
the clear statutory requirements for providing these details as per the Form
1. Again at Annexure A5 of the Insolvency Petition, no “Date of Default”
has been provided as mandated by the Form 1. No “date of default” has
been mentioned in the Loan Recall Notice either, which has admittedly
been mentioned as the basis for filing the Insolvency Petition. No fact as
to how the IBC Petition is within Limitation was either pleaded nor was
any document provided with the petition to prove that the same is within
limitation. In view of the same, the IBC Petition filed by Respondent No.
2 was as such liable to be rejected.

In Re: Order dated 27.09.2022 passed by the Ld. Adjudicating

Authority, NCLT, Kolkata Bench in TP (IBC)/1(KB)2022,
T.A.(IBC)/1(KB)2022, T.A. (IBC)/1(KB)2022 upon reference
Thereafter, upon reference of issues framed by both the Hon’ble Judicial
member and the Hon’ble Technical member under Section 419(5) of the
Companies Act, the Hon’ble President, NCLT, Delhi referred the matter to
a Special Bench of NCLT, Kolkata vide order dated 21.02.2022. The
impugned opinion/ order of the Special Bench of NCLT, Kolkata
comprising of Member (judicial) dated 27.09.2022 failed to pass any
decision with respect to the issues referred by the Hon’ble Technical
member and with respect to the issues II, III and IV framed by the Ld.
Judicial member in the reference order. Rather, the Ld. Member (Judicial)
of the Special Bench of NCLT, Kolkata vide impugned order dated
27.09.2022 travelled beyond the admitted scope of reference made to the
Special bench, arrived at findings based on irrelevant considerations and
admitted the IBC petition without any application of mind. In this regard,
it is submitted that:-
(a) The Ld. Member (Judicial) of the Special Bench of NCLT, Kolkata
vide impugned order dated 27.09.2022 travelled beyond the admitted
scope of reference made to the Special bench by adjudicating on the
issue of validity of subsequent withdrawal of the Reply affidavits dated
16.04.2018 and 15.04.2019 filed by nominees/ appointees of PFC and
PFC controlled management on behalf of Respondent No. 1 in the IBC
Petition, which was not even an issue referred to it nor was disputed by
Respondent No. 2. Despite this, the Ld. Member (Judicial) relied on the
statements made in these Affidavits. It is submitted that these Reply
Affidavits dated 16.04.2018 and 15.04.2019 itself clearly establish the
Appellant’s submissions that on account of its control over the
Respondent No. 1 Company and its management, PFC colluded with
the erstwhile management during the proceedings in the present
Insolvency Petition. This is not merely a case of domination of Board
of Directors , but the erstwhile Company Secretary and MD who had
been appointed by/ at the behest of PFC had filed fraudulent affidavits
dated 13.04.2018 and 11.04.2019 at PFC’s instance de-hors the
directions of the BoD and without placing these Affidavits before the
BoD. The Affidavit in Reply filed by the CS dated 13.04.2018 itself
was rejected by the Hon’ble Tribunal vide Order dated 27.09.2018
since it lacked authorization. The Affidavit in Reply dtd. 11.04.2019
had been filed by PC Pankaj , MD appointed by PFC was in violation
to the decision already taken by the BoD in the 147th , 149th and 155th
BoD. Even in the 156th Board meeting, the MD of SMHPCL was only
permitted to put down the factual situation and accordingly, the
Affidavit in reply dtd. 11.04.2019 filed by PC Pankaj does not contain
any admission of Debt with respect to the Insolvency Petition.
(b) Furthermore, the reliance by the Ld. Member (Judicial) of the Special
Bench of NCLT, Kolkata vide impugned order dated 27.09.2022 on the
earlier Affidavits dated 13.04.2018 and 04.11.2019 filed by
management appointed by PFC and by CMD nominated by PFC was
itself misplaced, since the same had been subsequently withdrawn vide
Affidavit in Reply dated 27.02.2020 by Respondent No. 1 Company, on
the ground that they were filed fraudulently and collusively by the
Company Secretary and the erstwhile CMD, at the behest of the
Respondent No. 2 and since they were contrary to the decisions taken
by the BoD of Respondent No. 1 Company in various Board Meetings.
The Ld. Member (Judicial) of the Special Bench of NCLT, Kolkata
furthermore, failed to consider that the Affidavit in reply dated
27.02.2020 was filed by the brief integrum when the CMD appointed
 by Parties under the MoU dtd. 22.07.2019 was at the helm of affairs of
the Respondent No. 1 Company and in view of the fact situation
mentioned above, leave was granted by the Hon’ble Bench of NCLT,
Ahmedabad on 20.02.2020 to the Respondent No. 1 company to file
such a fresh Affidavit in Reply. The Ld. Member (Judicial) of the
Special Bench of NCLT, Kolkata further completely ignored that the
said Affidavit in Reply dtd. 27.02.2020 at para 49 & 50 thereof, also
categorically states that no debt was due or payable whatsoever since
the Loan Recall Notice dated 17.01.2018 was itself in violation of the
Additional Loan Agreement and was per-se illegal and that the said
Affidavit-in-reply only sought to refer to the MoU for the purpose of
additionally contending that in view of subsistence of the MoU, the
IBC Petition ought to be deferred.
(c) Furthermore, while adjudicating upon ISSUE II under reference i.e.
whether the Notice dated 17.01.2018 was illegal, the Ld. Member
(Judicial) of the Special Bench of NCLT, Kolkata vide impugned order
dated 27.09.2022 erroneously relied upon irrelevant documents and
incorrect submissions of the Respondent No. 2 without even
considering that admittedly the sanctioned amounts under the
Additional Loan Agreement were not disbursed by Respondent No. 2
towards interest to create and manufacture a situation of default and
hence, the Notice dated 17.01.2018 issued on the basis of the same, was
illegal and fraudulent. The issue of limitation has also been decided by
the Ld. Judicial Member on the basis of statements made in Balance
Sheets or Board meetings while the Respondent No. 1 Company was
under the complete illegal control of Respondent No. 2 and which
Balance Sheets/ Board minutes were provided for the first time along
with written submissions filed by the Respondent No. 2 belatedly and
without leave of the Hon’ble Court.
(d) The Ld. Member (Judicial) of the Special Bench of NCLT, Kolkata
vide impugned order dated 27.09.2022 erroneously held that the
computation sheet at Annexure A5 or the IBC Petition show the date of
default, when infact, the documents on record clearly evidence that
there is no pleading or averment in the Insolvency Petition regarding
“date of occurrence of default” in Respondent No. 2’s Insolvency
Petition, despite the clear statutory requirements for providing these
details as per the Form 1 and at Annexure A5 of the Insolvency
Petition, no “Date of Default” has been provided as mandated by the
Form 1.
(e) The Ld. Member (Judicial) of the Special Bench of NCLT, Kolkata
vide impugned order dated 27.09.2022 while deciding on ISSUE III
under reference, erroneously relied upon irrelevant documents and
incorrect submissions of the Respondent No. 2 based on the MoU dated
27.07.2019 without even considering that the case of the Appellant for
invoking Section 65 of the Code was that PFC did not release the
sanctioned amounts against the interest component under the
Additional Loan Agreement solely with the intent to engineer a
purported default and to drive the Company into insolvency and in
order to protect its erring employees and director nominees from being
held liable for violations under the Companies Act in view of the
judgment passed by the Hon’ble NCLT and to defeat the Petition under
Section 241-242 of the Companies Act, 2013 [ bearing no. CP 175/
 2017] which had been filed by the Appellant/ Promoters before the
Hon’ble NCLT and that such an act of engineering a purported default
by not disbursing the interest component sanctioned by way of the
Notice of Drawal, clearly tantamounts to malafide initiation of the
Insolvency Resolution Process in terms of Section 65 of the I & B
Code, 2016.
(f) Even the findings pertaining to the MoU terms by the Ld. Member
(judicial) are contradictory on the face of it and are belied by the
admitted facts on record as also a bare reading of the said MoU. Clause
1 of the MoU read with Clause 19 thereof clearly stipulated that:-
“1. During the pendency of this MoU, PFC will endeavor to persuade the other
lenders from not pursuing or withdrawing any legal proceedings, including the
IBC proceedings if filed during the pendency of the MoU. The details of
litigation amongst the Parties are stated in Schedule A hereto. Entegra shall
engage with PII (“Strategic Investor”) to endeavor that PII puts its petition
before NCLT also on hold and does not initiate any other proceedings….
19. The parties further agree that the monitoring process shall be informed to the
NCLT through GoMP or by their own and request will be made by PFC to defer
the Section 7 IBC proceeding from time to time till Definitive Agreements are
executed or the MOU is terminated. Similarly, Entegra shall request the NCLT
to defer Section 241-242 proceeding from time to time till the Definitive
Agreements are signed or the MOU is terminated. In case Definitive Agreements
are signed the said proceedings shall withdraw by the parties. In the event the
NCLT is not inclined to keep the IBC Petition pending during the period of the
MoU then both parties shall withdraw the above stated respective petitions,
without prejudice, keeping leave and liberty to file the same again in the event
the MOU does not work out…”
(g) The said MoU was to remain alive for a period of 12 months upon
execution in terms of Clause 22 of the MoU. Clause 23 of the MoU
further clearly stated that nothing contained in the MoU shall be
deemed as or treated as “an admission of any liability, wrongdoing,
omission, damages, and the same shall not be admissible in any
proceeding before the Court as admission”. However, the Respondent
No. 2 continued to breach the terms of the said MoU and in such a
situation, where (a) Respondent No. 2 was prosecuting its IBC Petition
against the Respondent Company from 15.12.2019 in violation of the
terms of the MoU and despite subsistence of the MoU on account of
which the Petition had been reserved for orders on 28.02.2020; (b)
Respondent No. 2, the remaining lenders and Respondent No. 2’s
nominees were not even returning the entire shareholding of the
Promoter which had been illegally invoked by Respondent No. 2; (c)
No assistance was being provided for amendment to the Articles of
Association by Respondent No. 2 or its nominees; (d) No due diligence
was being facilitated by Respondent No. 2’s Nominees; and (e) where
the MD appointed under the MoU resigned on account of orders being
reserved in the IBC Petition; the new investors sought to be brought in
by the Promoter/Appellant lost complete interest in the Respondent No.
1 Company and the Task Force decided that since the IBC petition was
being pursued by Respondent No. 2 it could per-force not do anything.
This clearly shows that failure to execute the MoU was solely on
account of Respondent No. 2 and therefore, the Promoter/ Appellant
could not have been faulted for not investing further monies despite
management control having not been ceded to it as envisaged under the
MoU.
 (h) The Impugned Order of the Ld. Member (Judicial) of the Special Bench
of NCLT, Kolkata shows that it has extremely selectively relied upon
facts and case laws and further has placed reliance on selective
observations made in the Judgment dtd. 12.03.2018 passed by the
Hon’ble NCLAT without even considering the findings rendered vide
the said Judgment which were binding on it. Hence, Impugned Order of
the Ld. Member (Judicial) of the Special Bench of NCLT, Kolkata
suffers from abject non application of mind.
Hence, the present Appeal.
 BEFORE THE NATIONAL COMPANY LAW APPELLATE
TRIBUNAL AT NEW DELHI
APPELLATE JURISDICTION
COMPANY APPEAL (AT) (Insolvency) NO. ____ 2023
IN THE MATTER OF:
SARWAN KUMAR … Appellant
VS
C.S. HOSPITALITY AND MANAGEMENT
SERVICES PVT. LTD. … Respondent

MEMORANDUM OF APPEAL PREFERRED BY THE APPELLANT

UNDER SECTION 61 OF THE INSOLVENCY AND BANKRUPTCY
CODE, 2016 AGAINST ORDER DATED 16.02.2023 PASSED BY
THE LD. ADJUDICATING AUTHORITY, NCLT, MUMBAI IN CP
(IB) 4485/(MB)/2019 (REFERRED TO AS IMPUGNED JUDGMENT),
ALONG WITH DECLARATION AND AFFIDAVIT.

1. Details of the appeal:

The present Appeal is preferred by the Appellant for challenging the

Order dated 16.02.2023 passed by the Ld. Adjudicating Authority, NCLT,

Mumbai in CP (IB) 4485/(MB)/2019 (referred to as “Impugned

Judgment”), whereby the Ld. Adjudicating Authority has dismissed the

Petition filed u/s 9 of the Insolvency and Bankruptcy Code, 2016

erroneously on the sole ground that the said Petition is barred by

limitation, without considering that:

Firstly, part payment of the operational debt was made by the Respondent

admittedly till September, 2019 and hence, in terms of Section 19 of the

Limitation Act, upon payment of such debt a fresh period of limitation

was to be computed from the time when the payment was made and

hence, the Insolvency Petition filed on 07.12.2019 was very much within

limitation; and
 Secondly, that the said operational debt which arose on account of non-

payment of Lease Rent under a Lease Agreement dated 14.09.2009 was a

continuing breach and hence, Section 22 of the Limitation Act was

applicable to the facts of the said matter. The impugned order,

furthermore, incorrectly holds that even if a quantum of the operational

debt was within limitation the entire operational debt would stand time

barred on account of any invoice being beyond limitation. True copy of

Order dated 16.02.2023 passed by the Ld. Adjudicating Authority, NCLT,

Mumbai in CP (IB) 4485/(MB)/2019 is attached herewith as

ANNEXURE A-1.

2. The date on which the order appealed against is communicated and

proof thereof, if any

The copy of the Impugned Order dated 16.02.2023 passed by the Ld.

Adjudicating Authority, NCLT, Mumbai in CP (IB) 4485/(MB)/2019 was

pronounced on 16.02.2023. The certified copy of the same has been

applied for on ……………, however, the same has not been received till

date.

3. Address of the Appellant for service is set out hereunder

a) Postal Address for Appellant: 603-B, New Blue Heaven

CHSL, Juhu Versova Link Rd., Andheri (West), Mumbai-400053

b) Phone Number:

c) Email: …………………

d) Fax No:
e) Address of Legal Representative with Phone No., Fax No., e-
mail, Mob. No.:
A-18, 3rd Floor, Jangpura Extension, New Delhi 110014
email: abhishekpuri@thelawpoint.com
Phone: +91 11 43508322; +919907102225
4. Address of the Respondents for service of all notices in the appeal

are set out hereunder:

(a) Postal Address: CTS No. 381/1-8, Swaroop Enclave, Off.

Military Road, Marol, Andheri (West), Mumbai-400059
(b)Phone Number: 9821126363
(c) Email: finance.nestor@keyshotels.com
(d)Fax No:
(e) Address of the Legal Representative: Subodh Gokhale,
Advocate, High Court, 1, Samruddhi, A/48, Gokuldham,
Goregaon East, Mumbai - 400063

5. Jurisdiction of the Appellate Tribunal

The Appellant declares that the subject matter of this appeal is within

the jurisdiction of this Hon’ble Tribunal.

6. Limitation

The Appellants declare that the Appeal is within the period of 30

days as specified under Section 61 of the Insolvency and Bankruptcy

Code, 2016. The impugned order was pronounced by the Learned

Adjudicating Authority on 16.02.2023. The Appellant herein applied

for the certified copy of the same on …………., however, has not

received the same till date. The Appellant declares that present

appeal is within limitation.

7. Facts of the case

Synopsis of Facts leading to passing of the Impugned Order

7.1. The Appellant Operational Creditor, is a senior citizen, aged 75 years,

currently retired with no regular source of income residing at the

address as mentioned in the cause title. The Appellant is the joint

owner of Unit No.504. situated at C.T.S. No. 38111-8, Swaroop

Enclave ("said building"), Opp. Borosil, Glass Factory, Military Rd.,

Andheri (cast) Mumbai -400 059 (hereinafter referred to as 'the said

 unit') purchased vide registered agreement dated 20th May 2005 from

the developers therein being "Swaroop Constructions Pvt. Ltd."

executed through its Director Vishal Agarwal.

7.2. The Respondent Corporate Debtor is a private limited company, inter-

alia, into the business of restaurants & hospitality and is operating a

hotel at the registered office address. The Directors of the Respondent

Corporate Debtor are also the directors of aforesaid Swaroop

Constructions Pvt. Ltd.

7.3. The Appellant granted lease of the said Unit in favour of the

Respondent Corporate Debtor from 2007 onwards. In this regard, a

Lease Deed dated 14.09.2009 was entered into between the

Respondent Corporate Debtor and the Appellant jointly with Kavita

Kumar which was registered under registration no. BDR/15-8488-

2009, for a period of 114 months (hereinafter referred to as 'the said

agreement'). Clause 4 of the said agreement provides that the

Respondent Corporate Debtor shall pay the Rent to the Appellant with

yearly increase of 10% and also the interest free deposit Rs. 1,50,000/-.

As per Clause 8 of the said agreement the Respondent Corporate

Debtor has undertaken to pay the periodic rent and in default thereof,

the Respondent Corporate Debtor has undertaken to pay interest at the

rate of 12% per annum on the compensation amount due from the due

date till the actual date of payment.

7.4. The Respondent Corporate Debtor is in willful breach of payment of

the rent and has failed to make timely payments towards the same. The

Respondent Corporate Debtor has failed to make full payments and has

made certain on account payments towards the outstanding rent only,

as described in the computation sheet annexed with the Insolvency

 Petition. Despite repeated requests and reminders, the Respondent

Corporate Debtor failed to make payments. The Respondent Corporate

Debtor till date admittedly continues to face financial difficulties and is

therefore unable to pay outstanding rent.

7.5. In the meantime, the Appellant approached the Respondent Corporate

Debtor for a certificate confirming the outstanding lease rent. The

Respondent Corporate Debtor on …………… issued a certificate

confirming/admitting relationship of lessor and lessee since September

2007 and also the outstanding rent.

7.6. Even thereafter the Respondent Corporate Debtor has

confirmed/admitted its liability to pay the amounts but despite repeated

requests/demands, it has failed to make complete and timely payments.

The Appellant sent letters to the Respondent Corporate Debtor dated

4th September 2013 again demanding outstanding amounts within 30

days from receipt thereof. The Respondent Corporate Debtor belatedly

responded vide its letter dated 11th December 2013 therein admitting

their liability to pay the amounts and assuring payment of the

outstanding amounts within 3 months. Through letter dated 16th

December 2013, the Appellant yet again asked for payments and the

Respondent Corporate Debtor orally continued to assure that payments

will be made.

7.7. Despite the above admission, assurances and undertakings, the

Respondent Corporate Debtor failed to pay the entire outstanding

amounts and merely made ad-hoc payments to the Appellant towards

the running account maintained between the parties, which were duly

appropriated by the Appellant towards the outstanding rent. After

deducting part payment made by the Respondent Corporate Debtor, an

 amount of Rs. 43,00,982/- including the interest as well as an amount

of Rs. 1,44,000/- being the balance on the interest of security deposit

i.e. a total of Rs.44,44,982/- still remains outstanding and payable as

on September, 2019. Moreover, the Respondent Corporate debtor has

unauthorizedly retained occupation of the said premises and has failed

to hand over possession, for which the Respondent Corporate Debtor is

liable to pay market rent. The Respondent Corporate Debtor has also

admitted its liability to pay the amounts. The Respondent Corporate

Debtor has deducted TDS for certain payments but has not actually

paid the amounts to the Appellant. The Respondent Corporate Debtor

has fraudulently committed various illegalities by, inter alia, failing to

(i) hold Annual General Meetings, (ii) circulate minutes of the

meetings, (iii) file returns etc. In fact, the name of the Respondent

Corporate Debtor was also struck off from the register of companies

and was subsequently revived. There are several financial irregularities

and misappropriation of funds by the Respondent Corporate Debtor.

There are various other parties who are similarly placed with identical

facts, who are also in the process of instituting proceedings against the

Respondent Corporate Debtor.

7.8. The said Lease Agreement expired on 14.03.2019. However, post

September, 2019 no further payments were made by the Respondent

Corporate Debtor, on the pretext that the Respondent Company is

suffering losses. Consequently, the Appellant issued the statutory

Demand notice in Form 3 as required under section 8 of the Insolvency

and Bankruptcy Code 2016 read with Rule 5 of the Insolvency And

Bankruptcy (Application to Adjudicating Authority) Rules, 2016 to the

Respondent Corporate Debtor on 10.06.2019 and again on 30.10.2019

 which was duly served to the Respondent Corporate Debtor on

22.11.2019 and through Speed Post with AD received on 26.11.2019.

7.9. No Reply to the said Demand Notices was received within the

statutory timelines of 10 days. Even the Reply dated 01.07.2019

received with respect to Demand Notice dated 10.06.2019, no cogent

dispute or proof thereof regarding the Rent amounts payable was

raised. From the facts of the present case, it is clear that there is no

dispute with respect to the outstanding amounts and is in fact an

admitted liability and considering the financial capacity of the

Respondent Corporate Debtor, it is not in a position to make pay the

outstanding amounts. Hence, the Respondent Corporate Debtor has no

defense and has failed to pay the admitted amounts.

7.10. On account of continued failure to pay the pending and admitted

operational debt despite issuance of Demand Notice, the Appellant was

constrained to file a Petition under Section 9 of the Insolvency and

Bankruptcy Code, 2016 bearing No. CP(IB) 4485/(MB)/2019 before

the Hon’ble Adjudicating Authority at Mumbai on 07.12.2019. It is

pertinent to mention that cognizant of the legal position that a fresh

cause of action accrues upon part payment of the debt, the Appellant in

the said Petition at Part IV of Form 5 under the heading of “THE

DATE FROM WHICH SUCH DEBT FELL DUE” had stipulated that

the pending debt amount towards rent arrears and interest thereon and

towards interest on security deposit was till September, 2019 viz. the

date till which part payment of the operational debt had been made by

the Respondent Corporate Debtor. True copy of the Petition filed by

the Appellant under Section 9 of the Insolvency and Bankruptcy Code,

2016 bearing No. CP(IB) 4485/(MB)/2019 before the Hon’ble

 Adjudicating Authority at Mumbai on 07.12.2019 is attached herewith

and marked as ANNEXURE A-2.

7.11. The Respondent filed an Affidavit in Reply on 17.07.2021 to the

Insolvency Petition bearing No. CP(IB) 4485/(MB)/2019, wherein no

cogent dispute or proof thereof to the amount of operational debt was

raised. The only points of defense urged in the Reply by the

Respondent Corporate Debtor were that (a) the operational debt

amounting to Rs. 29.38 Lacs for the period from 01.09.2007 to

30.09.2016 was supposedly beyond limitation; (b) the lease amounts

did not fall under the definition of Operational Debt; and (c) the

Operational Creditor/Appellant herein was an equity shareholder of the

Respondent Company, jointly holding 2022 equity shares of Rs. 10

each with his wife. The Appellant thereafter filed an Affidavit in

Rejoinder thereto on 24.08.2021. True copy of the Affidavit in Reply

dated 17.07.2021 filed by the Respondent to the Insolvency Petition

bearing No. CP(IB) 4485/(MB)/2019 is attached herewith and marked

as ANNEXURE A-3. True copy of the Affidavit in Rejoinder dated

24.08.2021 filed by the Appellant in the Insolvency Petition bearing No.

CP(IB) 4485/(MB)/2019 is attached herewith and marked as

ANNEXURE A-4.

7.12. The Appellant thereafter, filed an Application in the said Company

Petition praying for change of proposed IRP, and praying for

expediting hearing of the said matter. True copy of the Application in

the said Company Petition for change of proposed IRP is attached

herewith and marked as ANNEXURE A-5.

7.13. The matter was finally heard by the Hon’ble Adjudicating Authority on

27.08.2021 and the order was reserved, while granting liberty to the
 parties to file their written submissions. Accordingly, the parties filed

their respective written submissions/note on arguments in the said

matter. Thereafter, the matter was again reopened and listed on

17.09.2021 for further clarifications. As directed vide the order dated

17.09.2021, the Appellant filed an Additional Affidavit dated

06.10.2021 clarifying the status of the outstanding dues payable by the

Respondent to the Appellant. True copy of the written submissions filed

by the Appellant in Insolvency Petition bearing No. CP(IB)

4485/(MB)/2019 is attached herewith and marked as ANNEXURE A-

6. True copy of the written submissions filed by the Respondent

Corporate Debtor in Insolvency Petition bearing No. CP(IB)

4485/(MB)/2019 is attached herewith and marked as ANNEXURE A-

7. True copy of the Additional Affidavit dated 06.10.2021 filed by the

Appellant in the Insolvency Petition bearing No. CP(IB)

4485/(MB)/2019 is attached herewith and marked as ANNEXURE A-

8.

7.14. The matter was thereafter adjourned from time to time due to paucity

of time and orders were reserved on the Petition thrice. True copy of

the orders passed by the Hon’ble Adjudicating Authority in the

Insolvency Petition bearing No. CP(IB) 4485/(MB)/2019 are attached

herewith and marked as ANNEXURE A-9.

7.15. Hence, the present Appeal.

8. Facts in Issue and Questions of law that arise for consideration in the

Appeal are as follows:

(a) Facts in issue:

8.1 Whether the Ld. Adjudicating Authority erred in dismissing the

Insolvency Petition in the peculiar facts of the present case, wherein the

Respondent Company has admitted on record that it is running in losses

and is unable to pay the dues of its Creditors?

8.2 Whether the Ld. Adjudicating Authority erred in dismissing the

Petition filed u/s 9 of the Insolvency and Bankruptcy Code, 2016 on the

sole ground that the said Petition is barred by limitation, without

considering the arguments of the Appellant Operational Creditor?

8.3 Whether the Ld. Adjudicating Authority failed to consider the fact that

part payment of debt had been made by the Respondent till September,

2019 despite having found at para 5 of the impugned order that the

Company Petition was filed with respect to the unpaid portion of the

remaining rent due?

8.4 Whether the Ld. Adjudicating Authority erred by dismissing the entire

petition merely based on a finding that 29.38 Lacs of the operational

debt was older than 3 years?

(b)QUESTIONS OF LAW

8.5 Whether the impugned judgment fails to consider that part payment of

the operational debt was made by the Respondent admittedly till

September, 2019 and hence, in terms of Section 19 of the Limitation

Act, upon payment of such debt a fresh period of limitation was to be

computed from the time when the payment was made and hence, the

Insolvency Petition filed on 07.12.2019 was very much within

limitation?

8.6 Whether the impugned judgment fails to consider that the said

operational debt which arose on account of non-payment of Lease Rent

 under a Lease Agreement dated 14.09.2009 was a continuing breach

and hence, Section 22 of the Limitation Act was applicable to the facts

of the said matter?

8.7 Whether the impugned order incorrectly holds that even if a quantum

of the operational debt was within limitation the entire operational debt

would stand time barred on account of any invoice being beyond

limitation?

9. GROUNDS RAISED WITH LEGAL PROVISION

A. For that, the Ld. Adjudicating Authority erred in dismissing the

Insolvency Petition in the peculiar facts of the present case,

wherein the Respondent Company has admitted on record that it is

running in losses and is unable to pay the dues of its Creditors.

B. For that, the Ld. Adjudicating Authority erred in dismissing the

Petition filed u/s 9 of the Insolvency and Bankruptcy Code, 2016

on the sole ground that the said Petition is barred by limitation,

without considering the arguments of the Appellant Operational

Creditor.

C. For that, the Ld. Adjudicating Authority failed to consider the

fact that part payment of debt had been made by the Respondent

till September, 2019 despite having found at para 5 of the

impugned order that the Company Petition was filed with respect

to the unpaid portion of the remaining rent due.

D. For that, the Ld. Adjudicating Authority erred by dismissing the

entire petition merely based on a finding that 29.38 Lacs of the

operational debt was older than 3 years.

E. For that, the impugned judgment fails to consider that part

payment of the operational debt was made by the Respondent

 admittedly till September, 2019 and hence, in terms of Section 19

of the Limitation Act, upon payment of such debt a fresh period of

limitation was to be computed from the time when the payment

was made and hence, the Insolvency Petition filed on 07.12.2019

was very much within limitation.

F. For that, the impugned judgment fails to consider that the said

operational debt which arose on account of non-payment of Lease

Rent under a Lease Agreement dated 14.09.2009 was a continuing

breach and hence, Section 22 of the Limitation Act was applicable

to the facts of the said matter.

G. For that, the impugned order incorrectly holds that even if a

quantum of the operational debt was within limitation the entire

operational debt would stand time barred on account of any

invoice being beyond limitation.

10. Matters not previously filed or pending with any other court: The

Appellants further declare that the appellants had not previously filed

any writ petition or suit regarding the matter in respect of which this

appeal is preferred before any court or any other authority nor any such

writ petition or suit is pending before any of them.

11. Specify below explaining the grounds for such relief(s) and the

legal provisions, if any, relied upon: The Appellant relies on the

grounds as already mentioned above.

12. Details of Interim Application, if any, preferred along with appeal:

The Appellant has filed the Application for exemption from filing

certified copy of the Impugned Order and Application for exemption

from filing clear copies/typed copies of dim annexures along with

Appeal.
13. Details of appeal/s, if any, preferred before this Appellate Tribunal

against the same impugned order/direction, by Respondents with

numbers, dates and interim order, if any passed in that appeal (if

known): The Appellants have not filed any Appeal previously against

the Impugned Order and is oblivious about any other Appeal(s), if any,

pending before this Hon’ble Tribunal.

14. Details of Index: An index containing the details of the documents in

chronological order relied upon is enclosed hereinabove along with the

present Appeal.

15. Particulars of fee payable and details of bank draft in favour of

Pay and Accounts Officer, Ministry or Corporate Affairs, New

Delhi : Paid online via Bharatkosh

16. List of enclosures: Enclosures are set out highlighted as Annexures in

the list contained in the Index.

17. Whether the order appealed as communicated in original is filed?

If not, explain the reason for not filing the same: The copy of the

Impugned Order has been uploaded on the website of the Hon’ble

NCLT and the certified copy of the order has still not been

communicated.

18. Whether the appellant/s is ready to file written

submissions/arguments before the first hearing after serving the

copy of the same on Respondents: The Appellants craves leave of

this Hon’ble Tribunal to file Written Submissions/ Arguments after the

first hearing of the above mentioned appeal.

19. Whether the copy of memorandum of appeal with all enclosures

has been forwarded to all respondents and all interested parties, if

 so, enclose postal receipt/courier receipt in addition to payment of

prescribed process fee: _____

20. Any other relevant or material particulars/details which the

appellant(s) deems necessary to set out: NO

21. Reliefs Sought :

In view of the facts, facts in issue and questions of law set out above, the

Appellants pray for the following reliefs:

a) Allow the present appeal;

b) Set-aside the Order dated 16.02.2023 passed by the Ld. Adjudicating

Authority, NCLT, Mumbai in CP (IB) 4485/(MB)/2019;

c) Pass any other appropriate orders as the Hon’ble Appellate Tribunal

may deem fit.

AND FOR THIS ACT OF KINDNESS THE

APPELLANTS AS IN DUTY BOUND SHALL EVER

PRAY.

At New Delhi on this_____________.

Filed by:-

Abhishek Puri / Surbhi Gupta

(Counsel for the Appellant)
A-18, 3rd Floor,
Jangpura Extension,
New Delhi 110014.
Email:- registrardel@thelawpoint.com
Phone: +91 11 43508322
FILED ON: 18.03.2023

NEW DELHI
 BEFORE THE NATIONAL COMPANY LAW APPELLATE
TRIBUNAL AT NEW DELHI
APPELLATE JURISDICTION
I.A. NO. ________ OF 2023
IN
COMPANY APPEAL (AT) (Insolvency) NO. ____ 2023
IN THE MATTER OF:
SARWAN KUMAR … Appellant
VS
C.S. HOSPITALITY AND MANAGEMENT
SERVICES PVT. LTD. … Respondent

APPLICATION SEEKING EXEMPTION FROM FILING TRUE

TYPED COPIES OF DIM/ ILLEGIBLE ANNEXURES AND

CERTIFIED COPY OF THE IMPUGNED ORDER, UNDER RULE

31 R/W RULE 11 OF THE NCLAT RULES, 2016

1. The present Application is filed for seeking exemptions from filing true

typed copies of dim/ illegible annexures and certified copy of the

Impugned Order passed by the National Company Law Tribunal, Indore

Bench.

2. The certified copy of the Impugned Order has not been provided by the

Hon’ble NCLT till date. However, the present appeal is being preferred

on account of grave urgency in the matter and it is undertaken that the

said certified copy of the Impugned Order will be filed upon receiving

the same.

3. That due to urgency, the Appellant herein is filing the present Appeal

along with true photocopies of the annexures, which may be dim/

illegible and not in consonance with NCLAT Rules. Therefore, the

Appellant is hereby seeking leave of this Hon’ble Tribunal to file proper

true typed copies if so required.

4. The Applicant undertakes to file certified copy of the impugned order

and true typed copies of dim/ illegible annexures as and when available

and if so directed by this Hon’ble Tribunal.

5. Therefore, it is prayed that the exemption from filing certified copy of the

Impugned Judgment and true typed copies of annexures may kindly be

granted failing which loss and prejudice will be caused to the Applicant.

6. In the aforesaid circumstances, the Applicant humbly prays that:

(a) That the application be allowed.

(b) Exempt the Applicant/Appellant from filing certified copy of the

Impugned Order dated 28.07.2022.

(c) Exempt the Applicant/ Appellant from filing true typed copies of dim

and/ or improperly formatted annexures.

(d) Any other just and equitable order in the interest of justice may kindly

be passed.

AND FOR THIS ACT OF KINDNESS AND JUSTICE,

THE APPLICANT AS IN DUTY BOUND, SHALL EVER

PRAY.

Filed by:-

Abhishek Puri / Surbhi Gupta

(Counsel for the Appellant)
A-18, 3rd Floor,
Jangpura Extension,
New Delhi 110014.
Email:- registrardel@thelawpoint.com
Phone: +91 11 43508322
FILED ON:

NEW DELHI
 16.08.2022
To
The Ld. Registrar,
National Company Law Appellate Tribunal,
CGO Complex, New Delhi

Reference: Appeal arising from Impugned Order dated 28.07.2022 passed

by the Ld. Adjudicating Authority, NCLT, Indore Bench in C.P. No.
175/241-242/ NCLT/ AHM2017 titled “ENTEGRA LIMITED & ORS. V
SHREE MAHESHWAR HYDEL POWER CORPORATION LTD. &
ORS”

Subject: Caveat Clearance

Sir,
No caveat has been filed in the instant matter by any of the Respondents and
therefore, no caveator is required to be served with an advance copy of the
instant appeal. We undertake to provide/ serve sufficient copies of the
present appeal memorandum Along with all the necessary documents to the
Respondents in the manner as so directed by this Hon’ble Tribunal.

Sincerely,

Abhishek Puri / Surbhi Gupta

(Counsel for the Appellant)
A-18, 3rd Floor,
Jangpura Extension,
New Delhi 110014.
Email:- registrardel@thelawpoint.com
Phone: +91 11 43508322
 PROOF OF SERVICE

No caveat has been filed in the instant matter by any of the Respondents and
therefore, no caveator is required to be served with an advance copy of the
instant appeal. We undertake to provide/ serve sufficient copies of the
present appeal memorandum Along with all the necessary documents to the
Respondents in the manner as so directed by this Hon’ble Tribunal.

Sincerely,

Abhishek Puri / Surbhi Gupta

(Counsel for the Appellant)
A-18, 3rd Floor,
Jangpura Extension,
New Delhi 110014.
Email:- registrardel@thelawpoint.com
Phone: +91 11 43508322