NCLAT (2024.11.27) in Mr. Atul Nathalal Patel, Vs. Mr. Manish Pardasani & Ors. [Company Appeal (AT) (Insolvency) No. 1008 of 2023] held that;
In the present case, the Project did not commence within 6 months and 1 month grace period, which was provided in the MoU when Project did not commence, cause of action arose to the Financial Creditor as per Clause 8 of AoA noted above. Hence the submission of the Respondent that there being continuous obligation, limitation will not commence cannot be accepted.
We, thus, are of the view that in the facts of the present case, especially when Corporate Debtor has not pleaded that proceedings have been initiated maliciously with fraudulent intent, we are of the view that ingredients of Section 65 are not fulfilled, hence Notice under Section 65 is discharged.
We are of the clear view that Optional Certificate was not necessary, and the use of the word “Optional” itself indicates that unless IRP is aware of the facts and events, he is not required to give facts or opinion. We, thus are of the view that IRP’s Optional Certificate was wholly uncalled for,
In view of our above reasons and conclusions, we are satisfied that Section 7 Application filed by the Financial Creditor was hopelessly barred by time and was nothing but abuse of process of the Court by the Financial Creditor.
Excerpts of the Order;
This Appeal has been filed challenging the Order dated 25.07.2023 passed by the Learned Adjudicating Authority (National Company Law Tribunal, Mumbai Bench – IV) admitting a Section 7 Application filed by the Respondents No. 1 to 3 herein. The Appellant, Suspended Director of the Corporate Debtor, Atul Projects India Private Limited, aggrieved by the Order has come up in this Appeal.
2. Brief facts of the case necessary to be noticed for deciding the Appeal are:
i. A Memorandum of Understanding (MoU) was entered on 16.05.2010 between the Owners and M/s. Atul Projects India Private Ltd., the Developers for redevelopment of Project on the piece of land admeasuring 576.93 m², Malabar and Cumbula Hill Division Mumbai.
ii. Under the MoU, the Developer had proposed to pay amount of ₹9.40 Crores to Owners and ₹3.5 Crores to the Confirming Parties, detailed terms and conditions for carrying out the redevelopment and payment as well as details of total 22 floors to be redeveloped was contained in the MoU.
iii. Thakkars, namely Deepak Vinod Thakkar and Prashant Vinod Thakkar entered with Articles of Understanding (AoU) with the Developers who desired to jointly redevelop the Project.
iv. AoU was also executed on same date 16.05.2023. Under the AoU, Developers were entitled to sell/dispose of 4 entire floors of the new building and Thakkars were entitled to sell/dispose of 2 entire floors, namely, 18th and 19th floor in the new building. Thakkars were liable to get investment of ₹6 Crores which shall be paid to the Developer. ₹50 lakhs was investment paid by Thakkars and the amount of ₹6.5 Crores was supposed to be used by Developer to pay the Owners and Confirming Parties, the respective shares of ₹3 Crores and ₹3.5 Crores.
v. The AoU further noticed that Thakkars did not have requisite initial investment, hence it was agreed that they can obtain the same from Investors i.e., Respondents No. 1 to 3 to the Appeal.
vi. Thakkars entered into Articles of Agreement (AoA) on the same day dated 16.05.2010 with Respondents No. 1 to 3, the Investors which contemplated the Developer was Confirming Party.
vii. The AoA contemplated that Vendors i.e., Thakkars could be liable to get initial investment of ₹6 Crores and in lieu of payment of ₹6Crores, Investor shall be entitled for allotment of 18th floor out of 2 floors of the Vendors. The amount of ₹6 Crores was to be paid by Investors on behalf of the Vendors to the Developers.
viii. The Developers were to utilise the amount as per the MoU. It was further agreed that in event the Developer failed to comply with these obligation and other terms and conditions or fail to enter into Development Agreement with the Owners within 6 months from date of execution of AoA, then a grace period of 1 month will be provided to the Developers. The Investor shall have an option to terminate the Agreement and Developer shall return the sum of ₹3 Crores to the Investor along with interest @ 18% p.a. within 15 days of the Investor making demand of the same in writing to the Developers.
ix. The amount of ₹3 Crore was paid by the Investors on behalf of the Vendors i.e. Thakkars to the Developers. Due to some dispute with the Owners, the redevelopment could not begin.
x. On 04.11.2011, the Corporate Debtor returned an amount of ₹1.3 Crores to the Respondents No. 1 to 3. The Developer also paid certain amount to Thakkars out of ₹3 Crores received from the Investors.
xi. Appellant’s case is that amount of ₹1.95 Crore was paid to the Thakkars. The entire debt of ₹3 Crore given by Investors were paid. The project did not commence. The Corporate Debtor send a Complaint dated 04.07.2019 to the Senior Police Inspector, giving the details of transactions entered between the Developers, Deepak Vinod Thakkar and Prashant Vinod Thakkar. The Complaint mentioned that amount paid to the Investors payments were made to the Owner of ₹3 Crores. On request of the Investor, amount of 1.3 Crore was returned.
xii. It was stated by the Appellant that Investors got their full money refund but Appellant came to know that Investors amount taken from Appellant by Thakkars have not given to Investors. Request was made to register a case against the Vendors who have received the money to pay to Investor and have not paid.
xiii. The copy of the Complaint was also forwarded to Respondents No. 1 to 3. Respondents No. 1 to 3 after receiving the complaint sent a Legal Notice dated 30.07.2019 to the Appellant stating that only amount of ₹1.3 Crores was received by Investors till date and no further amount of ₹3 Crores have been received and total outstanding as on 28.07.2019 is ₹5,96,36,330/-. Agreement dated 16.05.2010 was terminated with immediate effect.
xiv. A Reply was sent to the said Legal Notice by the Corporate Debtor refuting any liability to pay any amount to the Respondents No. 1 to 3. It is stated that amount of ₹1.3 Crores was paid to the Respondent and rest of ₹1.7 Crores was paid to the Thakkars, last trench of payment was made to the Thakkars on 06.04.2014.
xv. It was further pleaded that any claim of the Respondents No. 1 to 3 is not due on the Corporate Debtor and claim if any may be against Thakkars only. It was also stated that Thakkars and Respondents No. 1 to 3 are in connivance.
xvi. On 20.09.2019 again Reply was sent on behalf of the Respondents No. 1 to 3 to the Interim Reply dated 08.08.2019 and Reply dated 16.08.2019. The Respondents No. 1 to 3 issued a Demand Notice dated 05.04.2022 demanding an amount of ₹7,16,19,262/-. xvii. After sending the Demand Notice there were further correspondence between the Parties. Respondents No. 1 to 3 filed an Application under Section 7 against the Corporate Debtor, claiming an amount of ₹7,28,09,697/-. Date of Default in Part IV is mentioned as 30.07.2019. In Section 7 Application, Notice was issued to the Corporate Debtor. Corporate Debtor filed its Reply dated 06.12.2022. A Rejoinder and Sur-Rejoinder was also filed. Adjudicating Authority after hearing the Parties, admitted Section 7 Application. Adjudicating Authority returned a finding that Corporate Debtor owes a Financial Debt in excess of ₹1 Crore which is in default, hence the Application deserves to be admitted. The objection raised by the Corporate Debtor that the Application is barred by limitation was overruled.
xviii. Challenging the Order admitting Section 7 Application, this Appeal has been filed.
# 4. We have heard Learned Counsel for the Appellant and Learned Counsel for the Financial Creditor and Learned Counsel appearing for the Interim Resolution Professional (IRP).
8. From the submissions made by Counsel for the Parties and materials on record, following questions arise for consideration in this Appeal:
I. Whether Section 7 Application filed by Respondents No. 1 to 3, the Financial Creditor herein was barred by time?
II. In view of admission of Financial Creditor, that out of ₹3 Crores paid by the Financial Creditor to the Corporate Debtor, whether Corporate Debtor has able to prove discharge of liability of balance amount of ₹1.7 Crores?
III. Whether sufficient grounds have been made out to invoke Section 65 of the IBC for imposing any penalty on the Financial Creditor?
Question No. 1
21. Clause 8 again contained an Agreement between the Parties that in the event of Project does not commence, Investors shall be entitled to claim back the interest along with 18% p.a. with the Developers which the Developers agreed and guaranteed to return. Clause 8 is as follows:
“08. It is hereby explicitly agreed and confirmed by and between the parties hereto that the Investors have agreed to invest on the sole condition that under no circumstances the Investors shall be liable and/or exposed to any penalty and/or expenses and/or claim so imposed and/or incurred and/or sustained upon the Developers and/or the VENDORS by any governmental authorities and/or concerned authorities and /or the Owners and/or the Confirming Parties whether under the said MOU or otherwise. In the event the said Project does not commence, then the Investors shall be entitled to claim back their investment along with 18 % interest per annum which the Developers have agreed and guaranteed to return.”
29. Limitation for filing an Application under Section 7 of the IBC is governed by Article 137 of the Limitation Act, 1963, which is a settled legal position. Article 137 of the Limitation Act, 1963 is as follows:
“137. Description of application: Any other application for which no period of limitation is provided elsewhere in the Division. Period of Limitation: Three Years. Time from which period begins to run: When the right to apply accrues.”
32. When we look into the Clause 8 of the AoA, which Clause also contain following statement “in the event the said project does not commence, then the Investors shall be entitled to claim back their investment along with 18% p.a., which the Developers have agreed and guaranteed to return”. Thus Clause 8 also contain eventuality when Investor shall be entitled to claim back their investment. The eventuality is “in the event the said project does not commence”. Even if for argument sake, we may accept the submission of the Counsel for the Financial Creditor that cause of action under Clause 6 commence only on 30.07.2019, the cause of action which accrued to the Financial Creditor by Clause 8 is not dependent on exercise of option by the Financial Creditor. When the Project does not commence, the cause of action arose to Financial Creditor to claim back their investment. Admittedly, building plans were never approved within 6 months as was contemplated in the MoU. No further steps were taken under the MoU or AoU and AoA after 16.05.2010, thus it is undisputed that Project never commenced. Whether the cause of action will not arise for Financial Creditor to claim back their amount till they exercise their option under Clause 6 is question to be answered. We are of the clear opinion that the cause of action which accrued to Financial Creditor under Clause 8 is independent from exercise of any option under Clause 6. Under Clause 8, the cause of action arose to the Investor when project did not commence without the Agreement been terminated by the Financial Creditor under Clause 6. Thus, cause of action and running on the limitation under Clause 8 cannot be arrested or controlled by exercise of option by Financial Creditor in Clause 6.
33. There is no material on record to indicate that project has commenced at any point of time even after 6 months of execution of MoU on 16.05.2010. The building plan having been never approved within 6 months, which was period prescribed in MoU for approval of the building sanction of the Plan within period of 6 months with grace period of 1 month. The period of 7 months came to an end on 16.12.2010 itself after expiry of 7 months from execution of the Agreement dated 16.05.2010. Thus, cause of action for filing the Application claiming refund of the investment arose to the Financial Creditor after 16.12.2010 and the same cannot remain suspended as contended by Counsel for the Financial Creditor till 30.07.2019.
34. The project having not commenced within seven months from execution of Agreement, the Plan having not been sanctioned within a period of 6 months and grace period of one month from 16.05.2010, the Project never commenced and under Clause 8, the cause of action arose to Financial Creditor to claim refund of the said investment and the said cause of action cannot remain arrested or suspended till the Financial Creditor exercise its option under Clause 6. Limitation for filing the proceeding for claiming refund of investment long expired after three years from 16.12.2010 i.e., in 15.12.2013 itself.
35. Long silence of the Financial Creditor after 16.12.2010 till filing of Police Complaint by Corporate Debtor itself speaks volumes of the ground realities and State of Affairs between the Parties. We, thus are satisfied that Application filed by the Financial Creditor was hopelessly barred by time and deserves to be rejected. Adjudicating Authority had only adverted to the one part of the submission of the Appellant that on commencement of limitation from 30.07.2019, the Application was barred by time, without adverting to and finding out as to when the cause of action arose for filing the Section 7 Application to the Financial Creditor. As and above the cause of action for filing the Application arose on 16.12.2010 and Section 7 Application which was filed by the Financial Creditor was hopelessly barred by time.
36. We also need to notice certain Judgments relied by a Counsel for the Financial Creditor in support of their submissions that limitation for filing Section 7 Application is a continuing limitation and Corporate Debtor was in continuous obligation, hence default is continuous and the Petition is not time barred. Learned Counsel for the Financial Creditor have relied on the Judgment of the Hon’ble Supreme Court in `Samrudhi Co-operative Housing Society Limited’ Vs. `Mumbai Mahalaxmi Construction Private Limited’ reported in Civil Appeal No. 4000/2019 decided on 11.01.2022. The above case arose out of Order of National Consumer Disputes Redressal Commission, in the above case, Complaint was filed by the Appellant to refund the excess taxes and charges paid by the Appellant to the Municipal Authorities due to the alleged deficiency of service of Respondents. The question was as to whether the Complaint was barred by limitation. In the above case, the Hon’ble Supreme Court has noted the provisions of Section 22 of the Limitation Act, 1963, which provides for computation of limitation in the case of a continuing breach of project of Contract…. Hon’ble Supreme Court held that since there was continuous failure to obtain a occupancy certificate, which was a breach of obligation, hence it was a continuous wrong. Following was laid down in Paragraph 18:
“18 Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate, there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.”
37. Above Judgment of the Hon’ble Supreme Court was on its own facts and has no Application in the present case. In the present case, the Project did not commence within 6 months and 1 month grace period, which was provided in the MoU when Project did not commence, cause of action arose to the Financial Creditor as per Clause 8 of AoA noted above. Hence the submission of the Respondent that there being continuous obligation, limitation will not commence cannot be accepted.
Question No.2
47. The Financial Creditor who has advanced ₹3 Crores for a Project to start after expiry of 7 months which was a maximum period for a Project to start having come to an end, has not even written a letter demanding any amount for long more than 8 years to the Corporate Debtor demanding any amount speaks for itself that the Financial Creditors was satisfied about his refund of the amount and the State of Affairs indicate that there was no cause to take any action by the Financial Creditor. Corporate Debtor has already pleaded that Financial Creditor and the Partners, i.e., Vendors/Thakkars, were friends and in collusion with each other. Not even writing a letter after 16.12.2010 till 30.07.2019 i.e., after lapse of more than 8 years by the Financial Creditor itself indicates that they have no genuine claim against the Corporate Debtor. In event the huge dues were there on the Corporate Debtor due to Project having not commenced, there was no reason as to why the Financial Creditor will not write or demand or take any proceeding for recovery of the amount. Silence of Financial Creditor for long eight years speaks for itself. The Financial Creditor initiated the proceedings by filing Section 7 Application only after Police Complaint was filed by the Corporate Debtor on 04.07.2019, making allegations against Thakkars. Financial Creditor found an opportunity to launch a proceeding after the receipt of the Police Complaint dated 04.07.2019. We, thus are satisfied that Corporate Debtor had refunded the amount of ₹1.7 Crore to Thakkars and their Company, which was meant for refund to the Investors towards their amount of ₹3 Crores.
48. Silence of Financial Creditor for long 8 years of not writing even letter to Corporate Debtor or Vendors/Thakkars clearly indicates that refund of ₹3 Crores was satisfied. We, thus hold that Developers have refunded the amount of ₹1.7 Crores through Thakkars and its Companies for payment to Investors.
Question No. 3
49. We had also issued Notice to the Financial Creditor to show cause as to why they not be proceeded under Section 65 of the IBC Code. Learned Counsel for the Respondent submits that Corporate Debtor in the Reply of Section 7 has not raised any plea with regard to Section 65 nor has been filed any Application under Section 65. Learned Counsel for the Respondent has also referred to Judgment of the Hon’ble Supreme Court in the matter of `Beacon Trusteeship Limited’ Vs. `Earthcon Infracon Pvt. Ltd. & Anr.’ reported in Civil Appeal. 7641/2019 decided on 18.02.2020 where in Paragraph 7 following was laid down:
“7. Considering the provision of Section 65 of the IBC, it is necessary for the Adjudicating Authority in case such an allegation is raised to go into the same. In case, such an objection is raised or application is filed before the Adjudicating Authority, obviously, it has to be dealt with in accordance with law. The plea of collusion could not have been raised for the first time in the appeal before the NCLAT or before this Court in this appeal. Thus, we relegate the appellant to the remedy before the Adjudicating Authority.”
50. We have also looked into the Reply which was filed by the Corporate Debtor to Section 7 Application, although it was pleaded that there is a collusion between Financial Creditor and Thakkars and they have colluded with each other with mala fide intention to cheat the Corporate Debtor, but there are no averment that Section 7 Application has been filed fraudulently or with malicious intent. We, thus, are of the view that in the facts of the present case, especially when Corporate Debtor has not pleaded that proceedings have been initiated maliciously with fraudulent intent, we are of the view that ingredients of Section 65 are not fulfilled, hence Notice under Section 65 is discharged.
51. There is one more question, which need to be noticed, by Order dated 02.08.2023 we had also issued Notice to the IRP, noticing that IRP by giving his written consent to the Adjudicating Authority for acting as IRP has given certificate to the facts of the case. Learned Counsel for the IRP during his submission has referred to Insolvency and Bankruptcy (Application to the Adjudicating Authority) Rules, 2016. He has referred to Optional Certificate which is at the end of Form–2’.
52. The use of the expression “Optional Certification” in `Form – 2’ itself indicates that the said certification is only optional and not required to be given by the IRP, who is giving consent to act as. The Optional Certificate which has been given by the IRP is part of Section 7 Application, which is as follows:
“I hereby certify that the facts averred by the Applicant in the present application are true, accurate and complete and a default has occurred in respect of the relevant corporate debtor. I have reached this conclusion based on the following facts and / or opinion:-
That, the Corporate Debtor approached the Financial Creditors that the Corporate Debtor was redeveloping a project ("Said Project") wherein the property being all that piece and portion of Land admeasuring 576.93 square meters registered in the books of the Collector of Land Revenue under Old No. 52, New 1C/455, Old Survey No. 763 Malabar and Cumbala Hill Division and in the books of the ,Collector of Municipal Rates and Taxes under "D" Ward No. 3521(2) and former Street No. 37A and present Street No. 61B ("Said Property") will be redeveloped and accordingly, the Corporate Debtor entered into a Memorandum of Understanding ("Said MOU") dated 16th May 2010 with the Owners of the Said Property. Further, the Corporate Debtor represented to the Financial Creditors that one Mr. Deepak Thakcal. and Mr. Prasan Thakkar ("Vendors") were interested in jointly redeveloping the Said Property and accordingly have entered into an Article of Understanding ("Said AOU") with Vendors for the purpose of jointly re-developing the Said Property. The Corporate Debtor subsequently approached and induced the Financial Creditors to invest in the Said Project and upon the various assurances and representations by the Corporate Debtors as well as that of the Vendors; an Articles of Agreement (on a franking of 1NR 100/- dated 15th May 2010) ("Said AOA") was entered into by and between the Vendors herein; Financial Creditors and Corporate Debtor.
The Financial Creditors in terms of the Said AOA agreed to invest an initial investment amount being a sum .of Rs.6,00,00,000/- (Rupees Six Crores only) in lieu of allotment of one floor in the new building admeasuring not less than 1350-1400 square feet of carpet area, being the 18thfloor in the new building along-with the car decks for the 18th floor (collectively referred to as the "Said Flat") of the Building that was to be constructed/ developed on the Said Property which amount was to be paid in the manner as enumerated in the Said AOA. The Financial Creditors invested an Initial amount of Rs. Rs.3,00,00,000/- (Rupees Three Crores only) on execution of the Said AOA and the balance sum of Rs.3,00,00,000/- (Rupees Three Crores only) was required to be paid by the Financial Creditors, subjected to the Corporate Debtors duly complying with all the obligations under the Said MOU including but not limited to obtaining Intimation of Disapproval ("IOD"), Commencement Certificate ("C. C."), execution and registration of an Agreement for Sale of the Said Flat, etc. The Said AOA categorically records that the Corporate Debtor shall comply with all the obligations under the Said MOU within 06 months from the date of execution of Said AOA.
That, the Said AOA categorically records that in the event the Corporate Debtor fails to comply with its obligations under the Said MOU and/ or fails to enter into a Development Agreement with the Vendors within 06 months from the date of execution of the Said AOA, then the Financial Creditors shall have an option to terminate the Said AOA and the Corporate Debtor shall be liable to return to the Financial editors the sum of Rs.3,00,00,000/- (Rupees Three Crores only) so invested by the Financial Creditors with the Corporate Debtor along-with interest at the rate of 18% per annum. That, the Corporate Debtor did not comply with the obligations under the Said MOU and accordingly pleaded to the Financial Debtors not to terminate the Said AOA and remain invested in the Said Project by paying a sum of Rs.1,30,00,000/- (Rupees One Crore Thirty Lakhs only) vide Cheque bearing No. 837304 towards interest on the amount invested by the Financial Creditors which cheque was en-cashed on 04`" November 2011.
That, since the payment of Rs.1,30,00,000/- (Rupees One Crore and Thirty Lakhs only); the Financial Creditors have been continuously and regularly calling upon either the Corporate Debtor or the Vendors as to the further progress of the Said Project including obtaining IOD and CC; however, time and again Corporate Debtor has been only expressing the various hurdles faced in complying with the obligations under the Said MOU. Subsequently, the Corporate Debtor vide the Letter dated 04th July 2019 addressed to the Senior Police Inspector of MIDC Police Station preferred an Application to register a Complaint against the Vendors for siphoning of money. The aforementioned Complaint enumerates various dealings by and between the Corporate Debtor and the Vendors to which the Financial Creditors are neither a party nor concerned with the same. The Corporate Debtor has vide the aforementioned Complaint stated that the Corporate Debtor has paid certain monies directly to the Vendors on behalf of the Financial Creditors.
The Financial Creditors apprehends that the Corporate Debtor has connived with the Vendors right from inception to cheat and defraud the Financial Creditors deliberately and intentionally inducing the Financial Creditors to invest in the Said Project. The Corporate Debtor had deliberately and intentionally failed to comply with its obligations under the Said MOU and neglected to return the aforesaid amount invested by the Financial Creditor and hence this Application / Petition is being preferred by the Financial Creditor.”
53. When we look into the above Optional Certificate, the entire case which is set up by the Financial Creditor has been stated by the IRP and has been verified. Rule 9 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 refers to IRP which provides as follows:
“9. Interim resolution professional.—
(1) The applicant, wherever he is required to propose or proposes to appoint an insolvency resolution professional, shall obtain a written communication in Form 2 from the insolvency professional for appointment as an interim resolution professional and enclose it with the application made under rules 4, 6 or 7, as the case may be.
(2) The application under sub-rule (1) shall be accompanied by a certificate confirming the eligibility of the proposed insolvency professional for appointment as a resolution professional in accordance with the Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016.”
54. The detail facts and opinion as extracted above, given by the IRP were wholly uncalled for IRP who is giving a certificate on 15.07.2022 is not supposed to know the events and facts which transpired between the Parties from 16.05.2010. Learned Counsel for the IRP submits that in view of the `Form–2’ requiring Optional Certificate, the IRP has given the Option Certificate and there was no mala fide intention of the IRP or an intent to help the Financial Creditor. We are of the clear view that Optional Certificate was not necessary, and the use of the word “Optional” itself indicates that unless IRP is aware of the facts and events, he is not required to give facts or opinion. We, thus are of the view that IRP’s Optional Certificate was wholly uncalled for, however, in any view of the matter, we do not propose to refer the matter to IBBI for any action against the IRP, except by recording our disapproval of the actions of IRP in giving Optional Certificate as noted above.
55. In view of our above reasons and conclusions, we are satisfied that Section 7 Application filed by the Financial Creditor was hopelessly barred by time and was nothing but abuse of process of the Court by the Financial Creditor.
56. For the reasons and conclusions above, we allow the Appeal, set aside the Order passed by the Adjudicating Authority dated 25.07.2023, admitting Section 7 Application and dismiss Section 7 Application filed by the Financial Creditor. The Parties shall bear their own cost..
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