# In the matter of Empee Distilleries Limited MA-496-2019 in CP-280-IB-2018

> NCLT judgment dated 2019-06-04. Citation: TCN-2019-NCLT-03047. This is an MA filed under Section 60(5) of the Insolvency & Bankruptcy Code, 2016, by the…

- **Court:** NCLT
- **Order date:** 4 Jun 2019
- **Citation:** TCN-2019-NCLT-03047
- **Category:** IBC
- **Source page:** https://caseease.in/cases/ibc/nclt-chandigarh/empee-distilleries-limited-ma-496-2019-in-cp-280-ib-2018-6b291099

## Summary

### Background

This is an MA filed under Section 60(5) of the Insolvency & Bankruptcy Code, 2016, by the Promoter-Directors against the Financial Creditor (R1) and the Resolution Professional (R2). The Promoter-Directors failed to raise the point of limitation at the time of admission of the Company Petition on 01.11.2018 against the Corporate Debtor. A shareholder of the Corporate Debtor filed Civil Appeals before the Supreme Court against the order of the NCLAT, which were dismissed. The Supreme Court kept the point of limitation open for further proceedings. The Promoter-Directors then filed this MA before the Adjudicating Authority to examine the limitation point.

## Facts

The Financial Creditor (Union Bank of India) filed a Section 7 petition against the Corporate Debtor (Empee Distilleries Limited). The petition was admitted on 01.11.2018. The Promoter-Directors of the Corporate Debtor did not raise the point of limitation before the NCLT at the time of admission. Shareholders of the Corporate Debtor filed an appeal before the NCLAT, which was dismissed. They then filed Civil Appeals before the Supreme Court, which were also dismissed, but the Supreme Court kept the point of limitation open. The Promoter-Directors then filed an MA u/s 60(5) of the Code before the NCLT, arguing that the company petition should be dismissed as barred by limitation and the CIRP process revoked. The Corporate Debtor's loan repayment default was declared by

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## Issues and analysis

### Issue 1: Whether an application is entertainable before the Adjudicating Authority after the petition has …

**Ratio:** Once a Company Petition is admitted under Section 7, 9, or 10 of the Code, the

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**Reasoning:** The Adjudicating Authority cannot rotate the clock back as to the admission. A specific

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**Interpretation:** The court interprets that once the CIRP process has been initiated, the

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**Application:** Since the CIRP process was already in progress, the Adjudicating Authority held

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## Parties

- **Judges:** B.S.V. Prakash…; S. VIJAYARA…
- **Appellants:** P. Purusho…
- **Respondents:** M/s. Empee…; Union Bank of…

## Timeline

- **2018-11-01 — Admission of Section 7…**: Financial Creditor's Section 7 Petition…
- **2019-05-10 — Supreme Cour…**: Supreme Court dismissed the appeals filed by the shareholder of the Corporate Debtor,…

## Legal provisions

- [Insolvency and Bankruptcy Code, 2016, Section 60(5) — Adjudicating Authority for corporate persons](https://caseease.in/legal-provisions/insolvency-and-bankruptcy-code-2016/section-60)

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