IN THE NATIONAL COMPANY LAW APPELLATE

TRIBUNAL, NEW DELHI

APPELLATE JURISDICTION
COMPANY APPEAL (AT) (INSOLVENCY) NO. _____ OF
2020

(Appeal under Section 61(1) of the Insolvency and Bankruptcy

Code, 2016 arising out of Impugned Order dated 20.02023, passed
by the Hon’ble National Company Law Tribunal, Bench-II, at
Hyderabad in IA (IB) No. 381/HDB/2018 Under Section 60(5) of
the IB code, 2016 r/w Rule 11 of the National Company Law
Tribunal (Application to Adjudicating Authority) Rules, 2016

IN THE MATTER OF:

MCM PACIFIC PTE. LTD ...APPELLANT

VERSUS

MR. PANKAJ DHANUKA

Liquidator of Lanco Kondapalli Power Ltd.
...RESPONDENT

S. PARTICULARS P. NO
NO
1 Urgent Application
2 Letter for Caveat Clearance
3 Memo of Parties
4 Proof of Service
5 Synopsis and List of Dates
6 Memorandum of Appeal with Supporting
Affidavit
7 Annexure A/1
Certified Copy of the order dated 20.03.2023
passed by the Adjudicating Authority in IA
(IB) No. 381/HDB/2018.
8 Annexure A/2
A Copy of Board Resolution authorizing Mr.
Sunil Chopra to sign the Appeal on behalf of
the Appellant
9 Annexure A/3
A copy of Agreement entered by the Parties.
10 Annexure A/4
A copy of Purchase orders.
11 Annexure A/5
 A copy of invoices of bills issued by the
Appellant on the Respondent.
12 Annexure A/6
A copy of Statement of outstanding Dues.
13 Annexure A/7
A copy of Confirmation of Accounts
14 Annexure A/8
A copy of Demand notice dated 21.11.2015 &
5.12.2016 sent by the Appellant to the
Respondent.
15 Annexure A/9
A copy of demand notice dated 20.02.2019
sent by the Appellant to the Respondent
demanding payment of the unpaid Operational
Debt.
16 Annexure A/10
A copy of reply to the demand notice dated
20.02.2019 sent by the Respondent to the
Appellant.
17 Annexure A-11
True copy of the application dated 30.09.2019
bearing IB/2540/ND/2019 filed by the
Appellant against the Respondent before the
Adjudicating Authority under S.9 of the IBC,
2016.
18 Interlocutory Application and Affidavit
verifying thereof.
19 Vakalatnama.

THROUGH:

ADITYA SHANKAR/SAMEER KUMAR

ADVOCATES FOR THE APPELLANT
CHAMBERS OF ADITYA SHANKAR
6 SCHOOL LANE, FIRST FLOOR,
OPP. THE LALIT, BARAKHAMBA ROAD
 NEW DELHI -110001
PHONE: +91-9654058652

PLACE: NEW DELHI

DATED: 07.02.2020

IN THE NATIONAL COMPANY LAW APPELLATE

TRIBUNAL, CHENNAI
APPELLATE JURISDICTION
COMPANY APPEAL (AT) (INSOLVENCY) NO. _____ OF
2023

(Appeal under Section 61(1) of the Insolvency and Bankruptcy

Code, 2016 arising out of Impugned Order dated 20.02023, passed
by the Hon’ble National Company Law Tribunal, Bench-II, at
Hyderabad in IA (IB) No. 381/HDB/2018 Under Section 60(5) of
the IB code, 2016 r/w Rule 11 of the National Company Law
Tribunal (Application to Adjudicating Authority) Rules, 2016)

IN THE MATTER OF:

MCM PACIFIC PTE. LTD ...APPELLANT

VERSUS

MR. PANKAJ DHANUKA

Liquidator of Lanco Kondapalli Power Ltd.
...RESPONDENT

URGENT APPLICATION

To,
The Registrar,
National Company Law Appellate Tribunal
New Delhi

Sir,

You are requested to kindly treat the accompanying Appeal as

urgent as per the National Company Law Appellate Tribunal Rules,
2016. The grounds for urgency are as prayed for in the
accompanying petition.
 THROUGH:

SAMEER KUMAR
ADVOCATES FOR THE APPELLANT
CHAMBERS OF ADITYA SHANKAR
6 SCHOOL LANE, FIRST FLOOR,
OPP. THE LALIT, BARAKHAMBA ROAD
NEW DELHI -110001
PHONE: +91-9654058652

PLACE: NEW DELHI

DATED: 07.02.2020

IN THE NATIONAL COMPANY LAW APPELLATE

TRIBUNAL, CHENNAI
APPELLATE JURISDICTION
COMPANY APPEAL (AT) (INSOLVENCY) NO. _____ OF
2023

(Appeal under Section 61(1) of the Insolvency and Bankruptcy

Code, 2016 arising out of Impugned Order dated 20.02023, passed
by the Hon’ble National Company Law Tribunal, Bench-II, at
Hyderabad in IA (IB) No. 381/HDB/2018 Under Section 60(5) of
the IB code, 2016 r/w Rule 11 of the National Company Law
Tribunal (Application to Adjudicating Authority) Rules, 2016)

MCM PACIFIC PTE. LTD ...APPELLANT

VERSUS

MR. PANKAJ DHANUKA

Liquidator of Lanco Kondapalli Power Ltd.
...RESPONDENT

MEMO OF PARTIES

MCM PACIFIC PTE LTD.

Having its office at 911 Lorong 1 Toa Payoh,
# 25-01 Oleander Towers, Singapore ...APPELLANT

Versus

MR. PANKAJ DHANUKA

Liquidator of Lanco Kondapalli Power Ltd.
Having its registered address at FE 328, Sector-3,
Salt Lake City, Kolkata 700106, West Bengal
...RESPONDENT

THROUGH:

SAMEER KUMAR
ADVOCATES FOR THE APPELLANT
CHAMBERS OF ADITYA SHANKAR
6 SCHOOL LANE, FIRST FLOOR,
OPP. THE LALIT, BARAKHAMBA ROAD
NEW DELHI -110001
PHONE: +91-9654058652

PLACE: NEW DELHI

DATED: 07.02.2020

SYNOPSIS
 LIST OF DATES

S DATES EVENTS
L.
N
o.
1. The Applicant, a Singapore Company, was Incorporated
07.4.2006 for carrying on business of Manufacturing, Importing,
Exporting and wholesale supplying.

2. An application was filed by the Financial Creditor under

Section 7 of the Code being C.P. (IB)
23.04.2019 No.678/7/HDB/2018 to initiate Corporate Insolvency
Resolution Process (CIRP) with respect to the Corporate
Debtor.

3. The Hon'ble Adjudicating Authority placed the Corporate

16.04.2021 Debtor under the liquidation process and appointed the
Respondent as the Liquidator for the Corporate Debtor

4. 02.02.2022 The Liquidator issued public announcement, published on

February 02,2022 in the Andhra Prabha (Telugu), Andhra
Pradesh and Telangana Edition and Financial Express
(English), All India Edition, inviting expressions of
Interest ("EOI") from prospective bidders for participation
in the E auction process of the sale of Corporate Debtor

5. Applicant participated in E-Auction being called for by

the Respondent Liquidator for sale of the Assets of the
21.06.2022 Company in Liquidation, and was declared as the
successful bidder and Letter of Intent was Issued by the
Respondent Liquidator in favour of the Applicant.

6. However, due to unavoidable and unforeseen

circumstances not within the control of the Applicant such
as sharp depreciation in Myanmar currency in a short
--- time, the Applicant was unable to deposit the remaining
amount within the stipulated time and vide letter dated
15th September, 2022 the Applicant informed the
liquidator about its difficulties. Thus, owing to the force
majeure the Applicant was unable to fulfill its obligations.

7. The Applicant filed an Application before this Hon'ble

Adjudicating Authority in IA(IBC) No.972/2022 in
18.09.2022 CP(IB)No.678/7/HDB/2018 seeking for an extension of
the timefor payment of the balance sale consideration

8. 20.09.2020 The Respondent cancelled the sale and LOI

9. 12.10.2022 This Hon’ble Tribunal vide Order dated 12.10.2022 was
pleased to dismiss the said I.A. (IBC) No. 972/2022

10. 28.11.2022 The Applicant filed a Company Appeal (AT)(CH)(Ins)

. No. 416/2022 which also came to be dismissed.

11. 26.12.2022 The Applicant requested the Respondent to reconsider the

cancellation of the bid as the Applicant had arranged for
the required funds and was ready to deposit the same by
31.03.2023

12. 30.12.2022 The Respondent informed the Applicant that the proposal
was placed before the Stakeholders Consultation
Committee of LKPL (“SCC”) in the meeting held on
December 27, 2022 and they suggested certain
suggestions.

13. 30.12.2022 The Applicant herein has accepted the offer made by the
Respondent on behalf of the SCC and is ready to comply
with the same.

14. 05.01.2023 Application seeking appropriate directions for reinstating

the Applicant’s bid and obtaining a No Objection from
this Hon’ble Tribunal being I.A(IBC)/66/2023, came to be
filed before the Hon’ble NCLT, Hyderabad

15. 19.01.2023 I.A(IBC)/66/2023 stood allowed and the Appellant was

granted 45 days time to make the remaining payment from
the date of the order with 12% interest thereon.
16. _________ I.A (IBC)______was filed inter-alia, seeking further
extension of time till 31.05.2023 for making the complete
payment, citing some practical difficulties in remittance of
amount by the Appellant.
17. _________ The Hon’ble NCLT partly allowed the Application filed
_ by the Appellant yet declined to allow the interest waiver
for the interrugnum period i.e from _____to_______,
during which the contract between the parties stood
terminated.
18. _________ Hence the present Appeal
H
 FORM NCLAT-1
(SEE RULE 22)

MEMORANDUM OF APPEAL PREFERRED UNDER

SECTION 61 OF THE INSOLVENCY AND BANKRUPTCY
CODE, 2016

IN THE NATIONAL COMPANY LAW APPELLATE

TRIBUNAL, HYDERABAD
APPELLATE JURISDICTION
COMPANY APPEAL (AT) (INSOLVENCY) NO. ______ OF
2023

IN THE MATTER OF:

MCM PACIFIC PTE. LTD ...APPELLANT

VERSUS

MR. PANKAJ DHANUKA

Liquidator of Lanco Kondapalli Power Ltd.
...RESPONDENT

1. DETAILS OF APPEAL:

That the instant Appeal is being filed by the Authorized

Representative of the Appellant under Section 61 of the

Insolvency and Bankruptcy Code, 2016 (‘IBC’) against the

order dated Order dated 20.02023, passed by the Hon’ble

 National Company Law Tribunal, Bench-II, at Hyderabad in

IA (IB) No. 381/HDB/2018 Under Section 60(5) of the IB

code, 2016 r/w Rule 11 of the National Company Law

Tribunal (Application to Adjudicating Authority) Rules,

2016), whereby the Adjudicating Authority has partly allowed

the dismissed the application filed by the Appellant and has

declined to waive off the interest for the period

___________to__________, while the contract between the

Appellant and the Respondent stood terminated. Certified

Copy of the order dated 20.03.2023, passed by the

Adjudicating Authority in __________________is annexed

herewith and marked as ANNEXURE A-1[Pages ___ to

___]. A true copy of the Board Resolution authorizing Mr.

Anwar Ahmad Naqvi to sign on behalf of the Appellant

company is annexed herewith and marked as ANNEXURE

A-2[Pages ___ to ___].

2. DATE ON WHICH THE ORDER APPEALED

AGAINST IS COMMUNICATED:

The Impugned Order was pronounced by the National

Company Law Tribunal, Bench-V, New Delhi, on

20.03.2023. The same was displayed on the concerned NCLT

website on ___________and the Appellant’s counsel received

an email regarding the same on _______________.

3. THE ADDRESS OF THE APPELLANT FOR SERVICE

IS AS SET OUT HEREUNDER:

MCM PACIFIC PTE LTD.

 HAVING ITS OFFICE AT 911 LORONG 1 TOA PAYOH,
# 25-01 OLEANDER TOWERS, SINGAPORE
ADDRESS OF LEGAL REPRESENTATIVE:
Mr. SAMEER KUMAR, SHAHRUKH AHMED&
MR. MANDEEP BAISALA
ADVOCATES FOR THE APPELLANT
6 SCHOOL LANE,
OPP. THE LALIT, BARAKHAMBA ROAD
NEW DELHI -110001
PHONE: +91-9654058652

4. THE ADDRESS OF THE RESPONDENTS FOR

SERVICE OF ALL NOTICES IN THE APPEAL ARE

AS SET OUT HERE UNDER:

5. MR. PANKAJ DHANUKA

LIQUIDATOR OF LANCO KONDAPALLI POWER LTD.
HAVING ITS REGISTERED ADDRESS AT FE 328,
SECTOR-3, SALT LAKE CITY, KOLKATA 700106,
WEST BENGAL

.
6. JURISDICTION OF THE APPELLATE TRIBUNAL:

The Appellant herein declares that the subject matter of the

present Appeal is within the jurisdiction of this Hon’ble

Tribunal.

7. LIMITATION:

1. That there is no delay in filing the present Appeal. It is stated

that the impugned order was passed on 20.03.2023 and the

instant Appeal is being today i.e 15.04.2023, which is within

____days from the date of passing the impugned order, well

within the limitation period of ________days, as mentioned

under Section 61(2) of the IB Code.

8. FACTS OF THE CASE:

1. That an application bearing C.P. (IB) No.678/7/HDB/2018

was filed by the Financial Creditor under Section 7 of the

Insolvency and Bankruptcy Code, 2016 (IBC) Code to initiate

the Corporate Insolvency Resolution Process (CIRP) with

respect to the Corporate Debtor. The said application was

admitted by this Hon'ble Tribunal vide Order dated 23rd

April, 2019. A True Copy of the said order dated 23rd April,

2019 is annexed hereto and marked with the Letter-"A".

2. That thereafter, vide order dated 16th April, 2021, this

Hon'ble Tribunal placed the Corporate Debtor under the

liquidation process and appointed the Respondent as the

Liquidator for the Corporate Debtor. A True copy of the order

dated 16th April, 2021, is annexed hereto and marked with a

Letter-"B".

3. That in pursuance of the same, the Liquidator issued a public

announcement as per rules, which came to be published on

February 02,2022 in the Andhra Prabha (Telugu) Andhra

Pradesh and Telangana Edition and Financial Express

(English) All India Edition and on website accessible

at https://lancogroup.com/ , in accordance with the provisions

of Regulation 33 and Schedule I of the Liquidation

Regulations, inviting expressions of interest ("EOI") from

prospective bidders for participation in the E auction process

of the sale of Corporate Debtor as a whole on a going concern

 basis of Phase 1 along with identified assets as a going

concern and sale of assets of Phase 2 and Phase 3 as parcel

separately and sale of assets of Corporate Debtor collectively,

in the manner provided in this Updated Process Document. A

copy of the said public announcement dated 2nd February,

2022 is annexed hereto and marked with the letter Letter-"C".

4. That the liquidator also issued for the said e-auction process,

a Process Document dated April 08, 2022, as amended and

supplemented from time to time. A copy of the process

document is annexed hereto and marked with the Letter-"D".

5. That pursuant to the said Public Announcement and Process

Document, the Applicant herein had submitted a bid in the e

auction process for the following Parcel as per Annexure II of

the Process Document, with Financial Proposal of INR

136,11,30,698/- (Indian Rupees One Hundred and Thirty-Six

Crores Eleven Lakhs Thirty Thousand Six Hundred and

Ninety Eight Only):

a. Category B (Parcel 4): Assets of Phase III of the

Corporate Debtor in parcel as mentioned in
Schedule C of the Process Document;

b. Parcel 4: Assets of Phase III of the Corporate

Debtor in parcel as mentioned in Schedule C of
the Process Document amended as on April 08,
2022.
6. That the Applicant had also issued a letter to the liquidator,

providing the proposed payment plan for purchase of

Category B Assets of Phase III parcel 4, in accordance with

and subject to the provisions of the process document dated

8th April, 2022. A copy of the said letter containing the

proposed payment plan is annexed hereto and marked with

the Letter-"E".

7. That it is pertinent to note that in the said proposed payment

plan it had been mentioned that there could be a slight

deviation in payment; however the applicant will ensure that

the entire purchase consideration is paid within 90 days of the

receipt of the Letter of Intent from the liquidator.

8. That after the e-auction was concluded, the Applicant herein

was declared as the Successful Bidder for the following

Parcel :

a. Category B (Parcel 4): Assets of Phase III of the

Corporate Debtor in parcel as mentioned in
Schedule C of the Process Document;

b. Parcel 4: Assets of Phase III of the Corporate

Debtor in parcel as mentioned in Schedule C of
the Process Document amended as on April 08,
2022.

9. That accordingly, a Letter of Intent dated 21st June, 2022 was

issued by the liquidator in favour of the Applicant herein with

respect to the aforesaid assets. A copy of Letter of Intent

 dated 21st June, 2022 is annexed hereto and marked with the

Letter-"F".

10. That as per the terms and conditions of the Letter of Intent

dated 21st June, 2022 and the process document dated 8th

April, 2022, the Applicant was required to make payment of

the entire sale/purchase consideration within 30 days and in

case the payment was not made within 30 days from the date

of receipt of Letter of Intent, the unpaid sums were to carry an

interest of 12% p.a. However, the applicant was to make

payment of the entire purchase consideration within 90 days

from the date of receipt of the Letter of Intent.

11. That as such the Applicant made payment of a sum of Rs.

15,44,23,947/- to the liquidator. However, due to unavoidable

and unforeseen circumstances not within the control of the

Applicant such as sharp depreciation in Myanmar currency in

a short time, the Applicant was unable to deposit the

remaining amount within the stipulated time and vide letter

dated 15th September, 2022 the Applicant informed the

liquidator about its difficulties. Thus, owing to the force

majeure the Applicant was unable to fulfill its obligations. A

copy of the said letter dated 15th September, 2022 is annexed

hereto and marked with the Letter-"G".

12. That it is pertinent to note that in the meantime the Applicant

had also approached a local Bank being United Amara Bank

 to fund the applicant and the said bank has duly agreed to

extend such facility to the applicant. A copy of the letter

issued by United Amara Bank, evidencing the same is

annexed hereto and marked with the Letter-"H".

13. That as the period of 90 days from the receipt of the Letter of

Intent dated 21st June, 2022 was expiring on 18th September,

2022, the Applicant herein filed an I.A. (IBC) No. 972/2022

in C.P. (IB) No.678/7/HDB/2018 seeking extension of time

for depositing the balance amount. A true copy of the I.A.

(IBC) No. 972/2022 in C.P. (IB) No.678/7/HDB/2018 dated

16.09.2022 is annexed hereto and marked with the Letter-"I".

14. That in the meantime the Respondent vide Email dated

20.09.2022 cancelled the sale and LOI issued to the Applicant

and also forfeited the amount of Rs. 15,44,23,947/- deposited

by the Applicant. A true copy of the email dated 20.09.2022

is annexed hereto and marked with the Letter-"J" and the

Affidavit in Reply dated 30.09.2022 of the Respondent in I.A.

(IBC) No. 972/2022 in C.P. (IB) No.678/7/HDB/2018is

annexed hereto and marked with the Letter-"K".

15. That this Hon’ble Tribunal vide Order dated 12.10.2022 was

pleased to dismiss the said I.A. (IBC) No. 972/2022. A true

copy of the Order dated 12.10.2022 passed by this Hon’ble

Tribunal in I.A. (IBC) No. 972/2022 in C.P. (IB)

No.678/7/HDB/2018 is annexed hereto and marked with the

Letter-"L".
16. That thereafter, being aggrieved with the Order dated

12.10.2022 passed by this Hon’ble Tribunal, the Applicant

filed a Company Appeal (AT)(CH)(Ins) No. 416/2022 which

also came to be dismissed on 28.11.2022. A true copy of the

Order dated 28.11.2022 passed by the Hon’ble NCLAT in

Company Appeal (AT)(CH)(Ins) No. 416/2022 is annexed

hereto and marked with the Letter-"M".

17. That it is pertinent to note that the Applicant has now

achieved financial stability and the United Amara Bank has

approved the credit facilities of the Applicant. A true copy of

the letter dated 30.11.2022 whereby Amara Bank has

approved the credit facility of the Applicant is annexed hereto

and marked with the Letter-"N". A true copy of the account

statement of the Applicant’s account bearing no

026070100004541 dated 05.12.2022 is annexed hereto and

marked with the Letter-"O". A true copy of the account

statement of the Applicant’s account bearing no

026010100008156 dated 05.12.2022 is annexed hereto and

marked with the Letter-"P". A true copy of the statement

summary is annexed hereto and marked with the Letter-"Q".

18. That thereafter, the Applicant herein vide Email dated

26.12.2022 had requested the Respondent to reconsider the

cancellation of the bid as the Applicant had arranged for the

required funds and was ready to deposit the same by

 31.03.2023. A true copy of the email dated 26.12.2022 is

annexed hereto and marked with the Letter-"R".

19. That thereafter, vide email dated 30.12.2022 the Respondent

informed the Applicant that the aforesaid proposal was placed

before the Stakeholders Consultation Committee of LKPL

(“SCC”) in the meeting held on December 27, 2022 and the

following suggestions were made:

a. “In view of the orders passed by Hon’ble

NCLT dated October 12, 2022, and Hon’ble
NCLAT dated November 28, 2022, rejecting
your request for an extension of time and the
forfeiture of the amounts paid (“Orders”),
MCM ought to secure necessary
orders/permission from appropriate court
(including but not limited to Hon’ble Supreme
Court) to have the Orders set aside and
appropriate directions to the Liquidator and
consequential directions for payment of
balance sale consideration by MCM to be
issued.

b. In the interregnum entire balance sale

proceeds (including applicable interest @
12% per annum, GST @ 18% and other
applicable statutory taxes, duties etc., as
may be applicable) to be paid by MCM
within the period of 45 days, which needs to
be deposited in a no lien bank
account/existing current account of
Corporate Debtor as per the direction of the
SCC.
 c. Only upon receipt of approval of the
appropriate court as mentioned in point (1)
such money deposited by MCM as sale
consideration shall be accepted by the
Liquidator. In case of no such approval
from appropriate court, entire balance sale
proceeds to be paid in point (2) would be
refunded back to MCM.”

A true copy of the email dated 30.12.2022 is annexed

hereto and marked with the Letter-"S".

20. That vide Email dated 30.12.2022, the Applicant herein has

accepted the offer made by the Respondent on behalf of the

SCC and is ready to comply with the same. A true copy of the

email dated 30.12.2022 is annexed hereto and marked with

the Letter-"T" and reply dated 31.12.2022 is annexed hereto

and marked with the Letter-"U".

21. That on 07.01.2023 the Respondent sent an email

acknowledging the email dated 31.12.2022 agreeing to
upfront / immediate payment of 10% of committed funds i.e.,
Purchase Consideration of INR 136.11 crore and the balance
amount along with applicable interest @ 12% per annum,
GST @ 18% and other applicable statutory taxes, duties etc.,
as may be applicable within 45 days. A true copy of the email
dated 07.01.2023 is annexed hereto and marked with the
Letter-"V".

22. That on 09.01.2023 the Applicant filed Application

IA(IBC)/66/2023 in CP(IP)No. 678/7/HDB/2018 seeking
appropriate directions for reinstating the Applicant’s bid and
obtaining a No Objection from this Hon’ble Tribunal.
23. That on 12.01.2023 and 13.01.2023 emails were sent by the
Applicant informing the Respondent of the various
transactions whereby funds were deposited in the bank
account of the Respondent. A true copy of the email dated
12.01.2023 is annexed hereto and marked with the
Letter-"W" and email dated 13.01.2023 is annexed hereto and
marked with the Letter-"X".

24. That on 18.01.2023 the Respondent sent an email seeking

details of the transactions. A true copy of the email dated
18.01.2023 is annexed hereto and marked with the
Letter-"Y".

25. That on 18.01.2023 the Applicant sent an email attaching

proof of deposit of 0.7 million.A true copy of the email dated
18.01.2023 is annexed hereto and marked with the Letter-"Z".

26. That the IA(IBC)/66/2023 in CP(IP)No. 678/7/HDB/2018

filed by the Applicant came to be allowed vide Order dated
19.01.2023. It was held that:

“Heard both the Counsel. Mr. Chandrasen

Reddy, Senior Counsel appeared on behalf
of the applicant and liquidator was present.
Liquidator admitted that by virtue of an
email dated 07.01.2023, there was novation
of contract agreeing to restore the bid of the
Applicant and to receive the remaining
amount with 12% interest along with GST
and other applicable taxes and duties. By
virtue of an email dated 26.12.2022, the
Applicant requested the Respondent to
restore his bid. The Liquidator consents for
allowing this application. The Counsel for
the Petitioner however seeks this Tribunal to
give time of 45 days from the date of this
order, since the foreign exchange
transaction would consume considerable
time. The Respondent’s Counsel does not
raise any objection. However, since the
Applicant agreed to pay the remaining
amount with an interest @12% p.a., there
 would not be any prejudice caused to the
Respondent in granting such time.”

A true copy of the order dated 19.01.2023passed by this

Hon’ble Tribunal in IA(IBC)/66/2023 in CP(IP)No.
678/7/HDB/2018hereto and marked with the Letter-"AA".

27.That on 24.01.2023, the Applicant sent another email

attaching the KYC of all the remitters as well as the requisite
and mandatory letter stating that they are the Applicant’s
Associates and a confirmation regarding the deposits was
sought. Thereafter on 25.01.2023 the Applicant sent another
email providing the KYC details of HomasindoSukses. A true
copy of the email dated 24.01.2023 is annexed hereto and
marked with the Letter-"BB" and a true copy of the email
dated 25.01.2023 is annexed hereto and marked with the
Letter-"CC".

28.That the Applicant has made the following payments from 3 rd

Party bank accounts till date:
S.No Name of Remitter Date of Receipts Amount in USD
million
2 Ilaham Timur Pte Ltd 28-04-22 0.07
3 Zuma 828 Coal Ltd 12-07-22 0.10
4 Ilaham Timur Pte Ltd 27-06-22 0.91
5 Al Yunus Trading Co 16-01-23 0.13
Ltd
6 Al Yunus Trading Co 16-01-23 0.17
Ltd
7 PT Homasindo Sukses 18-01-23 0.20
Abadi
8 Al Yunus Trading Co 18-01-23 0.17
Ltd
9 Al Yunus Trading Co 18-01-23 0.14
Ltd
10 Al Yunus Trading Co 18-01-23 0.20
Ltd
11 Al Yunus Trading Co 18-01-23 0.20
Ltd
12 Big Stuff Global 19-01-23 0.30
Resources SDN BHD
 13 MC Unique Luxury 20-01-23 0.20
SDN BHD
Total 3.16

A true copy of the Memorandum of Understanding dated

06.02.2023 executed between the Applicant and the Joint
Venture Partners are annexed hereto and marked with the
Letter-"DD".

29.That thereafter vide email dated 10.02.2023 the Respondent

informed that the amount of USD $ 1,700,000/- deposited by
the Applicant was yet to be converted into INR for depositing
in the Corporate Debtor’s bank account as there were few
documentation formalities which were being undertaken. A
true copy of the email dated 10.02.2023 is annexed hereto and
marked with the Letter-"EE".

30.That vide Email dated 15.02.2023 the Applicant apprised the

Respondent about the prevailing political conditions in
Myanmar and informing the Respondent about deposit of an
additional sum of USD $ 6,000,000/- (Six Million). The
Applicant further sought permission to approach this Hon’ble
Tribunal seeking extension of time till 30.04.2023 and
approval of payments from 3rd Party bank accounts. A true
copy of the email dated 15.02.2023 is annexed hereto and
marked with the Letter-"FF".

31.That thereafter the Respondent sent an email dated

16.02.2023 to the Applicant stating that they are not agreeable
to extension of time and that approval be taken from this
Hon’ble Tribunal for the payments from 3 rd Party bank
accounts. A true copy of the email dated 16.02.2023 is
annexed hereto and marked with the Letter-"GG".

32.I.A (IBC)______was filed inter-alia, seeking further

extension of time till 31.05.2023 for making the complete
 payment, citing some practical difficulties in remittance of
amount by the Appellant.
33.The Hon’ble NCLT partly allowed the Application filed by
the Appellant but declined to allow the interest waiver for the
interregnum period i.e from _____to_______, during which
the contract between the parties stood terminated.
Aggrieved by the order dated 25.11.2019, the Appellant has

preferred the instant Appeal.

9. FACTS IN ISSUE AND QUESTION OF LAW:

A. Facts in Issue:

i. That the instant Appeal is being filed against the Appeal

under Section 61(1) of the Insolvency and Bankruptcy Code,

2016 arising out of Impugned Order dated 20.02023, passed

by the Hon’ble National Company Law Tribunal, Bench-II, at

Hyderabad in IA (IB) No. 381/HDB/2018 Under Section

60(5) of the IB code, 2016 r/w Rule 11 of the National

Company Law Tribunal (Application to Adjudicating

Authority) Rules, 2016That the application filed by the

Appellant under S.9 of the Insolvency and Bankruptcy Code,

2016 was liable to be admitted as the same was within the

period of limitation under Section 8 & 9 of the Insolvency

and Bankruptcy Code, 2016.

ii. That the Appellant is a successful bidder in the e-auction held

by the Respondent regarding the parcel as per Annexure OO

of the Process Document, with financial proposal of INR

136,11,30,698(INR One Hundred and Thirty-six crores

 Eleven Lakhs Thirty Thousand Six Hundred and Ninety-Eight

Only)

iii. Vide Email dated 20.09.2022, the contract was terminated by

the Respondent and also forfeited the amount of Rs.

15,44,23,947/- as the Appellant could not deposit the

remaining amount within the stipulated time due to

unforeseen circumstances beyond the control of the

Appellant.

iv. Pursuant to mutual understanding of the parties expressed

through various email communications, IA(IBC)/66/2023 in

CP(IP)No. 678/7/HDB/2018 filed by the Applicant, seeking

permission from the Hon’ble Adjudicating Authority to give

the consensus arrived at a legal one. The said IA came to be

allowed vide Order dated 19.01.2023 in terms of the mutual

agreed terms shared through the said mail communications

for a further period of 45 days, however as to any penal

interest qua the interregnum period i.e from 20.09.2022 till

19.01.23(during which the contract between the parties was

not existence, having been terminated by email dated

20.09.22), was not discussed at all and it was almost

understood that no interest shall be charged for the said

period.

v. Later on, citing some practical difficulties in remittance of

amount by the Appellant I.A (IBC)______was filed inter-alia,

seeking further extension of time till 31.05.2023 for making

the complete payment, the Appellant also sought waiver of

 interest for the interregnum period i.e 20.09.22 to 19.01.23.

vi.

vii. That the Adjudicating Authority has erroneously and

mechanically dismissed the application filed by the Appellant

while observing that the application under S.9 should have

been filed before 30.03.2019. It is stated that the Demand

Notice was duly served on the Respondent on 12.02.2019 and

as per the scheme of the IBC, there is no period of Limitation

mentioned within the IBC for filing the application under S.9

of the IBC.

B. QUESTIONS OF LAW

i. WHETHER the application filed by Appellant under section

9 of the Insolvency and Bankruptcy Code, 2016 was liable to

be dismissed as the same was within the Limitation period

under Section 8 and 9 of the Insolvency and Bankruptcy

Code, 2016?

ii. WHETHER the Adjudicating Authority has rightly held the

limitation period to be till the date of filing of the petition

under S.9 of the IBC or the same has to be construed till the

date of issuing the Demand Notice under S.8 of the IBC.

iii. WHETHER the application filed by Appellant under S.9 of

the Insolvency and Bankruptcy Code, 2016 was liable to be

dismissed as the Appellant had issued the Demand Notice

within the period of limitation prescribed under Sec. 137 of

 the Limitation Act?

iv. WHETHER the Adjudicating Authority failed to appreciate

that the debt claimed by the Appellant was admitted ?

v. WHETHER the Adjudicating Authority failed to appreciate

that the Law under the IBC is only set in motion once the

Demand Notice under S.8 is issued?

vi. WHETHER the Adjudicating Authority failed to appreciate

that the proceeding under S.9 of the IBC can only be initiated

once the Demand Notice under S.8 of the IBC is served on the

Corporate Debtor?

vii. WHETHER the Adjudicating Authority failed to appreciate

that the Limitation prescribed under S.137 of the Limitation

Act prescribes a Limitation of 3 years from the date of

occurrence of default till the time first steps are taken under

the applicable law towards setting the law in motion?

viii. WHETHER theAdjudicating Authority erroneously passed

the impugned order in a mechanical way without appreciating

the real purpose and intent of IBC?

ix. WHETHER an application under S.9 of IBC, 2016 can be

dismissed by the Adjudicating Authority even though the debt

claimed to be in default is crystallized, existing and admitted?

10. GROUNDS WITH LEGAL PROVISIONS:

i. FOR THAT the impugned order as passed by the

Adjudicating Authority is not tenable either in law or in facts

 of the present case and thus deserves to be set aside.

ii. FOR THATthe application filed by the Appellant under S.9

of the Insolvency and Bankruptcy Code, 2016 was liable to be

admitted as the same was within the period of limitation

under Section 8 & 9 of the Insolvency and Bankruptcy Code,

2016.

iii. FOR THAT the Adjudicating Authority failed to appreciate

that the period of Limitation starts from the date when the

cause of action arises under the Code i.e., from the date when

the Demand Notice is served upon the Corporate Debtor.

iv. FOR THAT the debt for which the petition u/s 9 of the Code

was instituted is a debt under the tenets of the Code, as the

same is due and payable, and is crystallized and not disputed.

v. FOR THAT the Adjudicating Authority failed to appreciate

that there exists a clear and real debt on the facts of the case.

vi. FOR THAT the Adjudicating Authority ought not have

dismissed the application filed by the Appellant under S.9 of

the IBCin view of the fact that the Demand Notice was served

on 12.02.2019, whereas the time period of Limitation was

expiring on 30.03.2019 and not on 12.02.2019.

vii. FOR THAT the Adjudicating Authority has erroneously and

 mechanically dismissed the application filed by the Appellant

while observing that the application under S.9 should have

been filed before 30.03.2019. It is stated that the Demand

Notice was duly served on the Respondent on 12.02.2019 and

as per the scheme of the IBC, there is no period of Limitation

mentioned within the IBC for filing the application under S.9

of the IBC.

viii. FOR THAT grave prejudice has been caused to Respondent

the Appellant as a result of the impugned judgment which has

been passed by the Adjudicating Authority.

11. MATTERS NOT PREVIOUSLY FILED OR PENDING

WITH ANY OTHER COURT

Appellant further declares that Appellant 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.

12. SPECIFY BELOW EXPLAINING THE GROUNDS FOR

SUCH RELIEF(S) AND THE LEGAL PROVISIONS, IF

ANY, RELIED UPON

The Appellants rely on the grounds and legal provisions as

mentioned in paragraph 9 above.

13. DETAILS OF INTERIM APPLICATION, IF ANY,

 PREFERRED ALONG WITH APPEAL

That the Appellant has not filed any other Application.

14. DETAILS OF APPEAL/S, IF ANY PREFERRED

BEFORE THIS APPELLATE TRIBUNAL AGAINST

THE SAME IMPUGNED ORDER/DIRECTION, BY

APPELLANT WITH NUMBERS, DATES AND

INTERIM ORDER, IF ANY PASSED IN THAT

APPEAL (IF KNOWN):

That the Appellant declares that to the best of his knowledge,

no other appeal has been preferred against the Impugned

Order by any other person.

15. DETAILS OF INDEX

(An index containing the details of the documents in

chronological order relied upon is enclosed)

16. PARTICULARS OF FEE PAYABLE AND DETAILS OF

BANK DRAFT IN FAVOUR OF PAY AND ACCOUNTS

OFFICER, MINISTRY OF CORPORATE AFFAIRS,

NEW DELHI IN RESPECT OF THE FEE FOR

APPEAL.

Name of the Bank:

DD No.

Date:

Amount: Rs.5,000/-;
17. LIST OF ENCLOSURES:

The enclosures being relied upon by the Appellant in the

present Appeal have been marked as Annexures (in

chronological order) in paragraph 7 of the present

memorandum of Appeal. Details of such Annexures are

contained in the Index affixed on top of the present

memorandum of Appeal

18. WHETHER THE ORDER APPEALED AS

COMMUNICATED IN ORIGINAL IS FILED? IF NOT,

EXPLAIN THE REASON FOR NOT FILING THE

SAME:

It is stated that the Certified Copy of the order was not

communicated to the Appellant and as such the Appellant

applied for a certified copy and has filed the same with this

Appeal.

19. WHETHER THE APPELLANT IS READY TO FILE

WRITTEN SUBMISSIONS/ARGUMENTS BEFORE

THE FIRST HEARING AFTER SERVING THE COPY

OF THE SAME ON RESPONDENTS:

The Appellant would file the written submissions/arguments

as and when directed by this Hon’ble Appellate Tribunal.

20. 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:

That the Appellant declare that copies of the memorandum of

appeal with all enclosures has been forwarded to the

Respondents. Annexed herewith are the copies of speed post /

registered post receipt for service of memorandum of appeal

along with all enclosures / annexures on the Respondents.

21. ANY OTHER RELEVANT OR MATERIAL

PARTICULARS/ DETAILS WHICH THE APPELLANT

DEEM NECESSARY TO SET OUT:

That the Appellant declare that copies of the memorandum of

appeal with all enclosures has been forwarded to the

Respondents. Annexed herewith are the copies of speed post /

registered post receipt for service of memorandum of appeal

along with all enclosures / annexures on the Respondents.

22. RELIEFS SOUGHT

In view of the facts mentioned in para 7 above, points in

dispute and questions of law set out in Para 8 and the grounds

as raised in Para 9 above, the Appellant prays for the

following relief(s):

a) Allow the instant Appeal;

b) Set aside the impugned order dated order dated 25.11.2019

 in IB/2540/ND/2019 passed by the National Company Law

Tribunal, Bench-V, New Delhi (‘Adjudicating Authority’);

c) Pass such other or further order(s) as this Hon’ble

Appellate Tribunal may deem fit and proper.

APPELLANT

THROUGH:

ADITYA SHANKAR/SAMEER KUMAR

ADVOCATES FOR THE APPELLANT
CHAMBERS OF ADITYA SHANKAR
6 SCHOOL LANE, FIRST FLOOR,
OPP. THE LALIT, BARAKHAMBA ROAD
NEW DELHI -110001
PHONE: +91-9654058652

PLACE: NEW DELHI

DATED: .02.2020

DECLARATION BY APPELLANT

Appellant above named hereby solemnly declares that nothing

material has been concealed or suppressed and further declares that

the enclosures and typed set of material papers relied upon and filed

herewith are true copies of the originals/fair reproduction of the

originals/true translation thereof.

Verified at New Delhi on this ____ day of February, 2020.

APPELLANT

ADITYA SHANKAR/SAMEER KUMAR

COUNSEL FOR THE APPELLANT
 VERIFICATION

I, /o Mr. Sunil Chopra aged about 56 years, working as Vice

President with the Appellant herein, having its Office at C 208

Kenwood Tower, Charmwood village, Faridabad, Haryana, India –

121009 do hereby verify that the contents of the instant Appeal from

Paras 1-7 are true to my personal knowledge and Paras 10-21 are

based on official record and Paras 8 and 9 are believed to be true on

legal advice and that I have not suppressed any material facts.

Verified and signed at New Delhi on this ____ day of February,

2020.

APPELLANT
DATED:
PLACE: NEW DELHI
 IN THE NATIONAL COMPANY LAW
APPELLATETRIBUNAL, NEW DELHI
APPELLATE JURISDICTION
COMPANY APPEAL (AT) (INSOLVENCY) NO. _____ OF
2020

(Appeal under Section 61(1) of the Insolvency and Bankruptcy

Code, 2016 arising out of Impugned Order dated November, 25
2019 passed by the Hon’ble National Company Law Tribunal,
Bench-V, at New Delhi in IB/2540/ND/2019)

IN THE MATTER OF:

EDGEWOOD NETWORKS PVT LTD. ...APPELLANT

VERSUS

HOUSTON TECHNOLOGIES LTD.

...RESPONDENT

AFFIDAVIT

I, Mr. Sunil Chopra aged about 56 years, working as Vice President

with the Appellant herein, having its Office at C 208 Kenwood
Tower, Charmwood village, Faridabad, Haryana, India – 121009
presently at New Delhi do hereby solemnly affirm and state as
under:-
1. I say that I am the Authorised Representative of the Appellant
vide Board Resolution dated 02.01.2020 in the instant case
and as such I am well acquainted with the facts of the instant
case and hence I am competent to swear this Affidavit.
2. Paragraphs 1-7 of the Appeal are based on records.
3. Paragraphs 10-21 of the Appeal are true to my personal
knowledge, information.
4. Paragraphs 8 and 9 of the Appeal are believed to be true and
based on provision of law.
5. I state that the annexures annexed to the instant Appeal are
true copies of the originals.

DEPONENT
VERIFICATION
I, the above named deponent, do hereby verify on this __ day of
February, 2020 that the contents of paragraphs 1-4 above are true
and correct to the best of my knowledge and belief and no part of it
is false and nothing material has been concealed there from.
 DEPONENT

IN THE NATIONAL COMPANY LAW

APPELLATETRIBUNAL, NEW DELHI
APPELLATE JURISDICTION
COMPANY APPEAL (AT) (INSOLVENCY) NO. _____ OF
2020

(Appeal under Section 61(1) of the Insolvency and Bankruptcy

Code, 2016 arising out of Impugned Order dated November, 25
2019 passed by the Hon’ble National Company Law Tribunal,
Bench-V, at New Delhi in IB/2540/ND/2019)

IN THE MATTER OF:

EDGEWOOD NETWORKS PVT LTD. ...APPELLANT

VERSUS

HOUSTON TECHNOLOGIES LTD.

...RESPONDENT

CAVEAT CLEARANCE

That the counsel for the Appellant states and submits that no caveat

has been served on the Appellant in the present matter.

ADITYA SHANKAR/SAMEER KUMAR

ADVOCATES FOR THE APPELLANT
CHAMBERS OF ADITYA SHANKAR
6 SCHOOL LANE, FIRST FLOOR,
OPP. THE LALIT, BARAKHAMBA ROAD
NEW DELHI -110001
PHONE: +91-9654058652
PLACE: NEW DELHI
DATED: 07.02.2020

IN THE NATIONAL COMPANY LAW APPELLATE

TRIBUNAL, NEW DELHI
APPELLATE JURISDICTION
COMPANY APPEAL (AT) (INSOLVENCY) NO. _____ OF
2020

(Appeal under Section 61(1) of the Insolvency and Bankruptcy

Code, 2016 arising out of Impugned Order dated November, 25
2019 passed by the Hon’ble National Company Law Tribunal,
Bench-V, at New Delhi in IB/2540/ND/2019)

IN THE MATTER OF:

EDGEWOOD NETWORKS PVT LTD. ...APPELLANT

VERSUS

HOUSTON TECHNOLOGIES LTD.

...RESPONDENT

PROOF OF SERVICE
 ADITYA SHANKAR/SAMEER KUMAR
ADVOCATES FOR THE APPELLANT
CHAMBERS OF ADITYA SHANKAR
6 SCHOOL LANE, FIRST FLOOR,
OPP. THE LALIT, BARAKHAMBA ROAD
NEW DELHI -110001
PHONE: +91-9654058652

PLACE: NEW DELHI

DATED: 07.02.2020