Aditya Birla Finance Limited vs Sarita Mishra & Anr
- CitationComp. App. (AT) (Ins) No. 169 of 2025
Ratio decidendi
The rule this decision rests on
The order's reasoning is limited to two points: first, that on substitution of a party following amalgamation, the amalgamated company may be substituted as appellant, the amalgamation order providing that all pending proceedings by or against the amalgamating company shall continue by or against the amalgamated company, and no objection having been raised; second, that where the impugned order has been held per incuriam by a coordinate bench of this Tribunal in another appeal, the appellant may withdraw the appeal and seek recall of the impugned order before the Tribunal, so the appeal is disposed of as infructuous with liberty to do so.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Aditya Birla Finance Ltd. ...Appellant(s)
Versus
Sarita Mishra & Anr. ...Respondent(s) Present: For Appellant : Mr. Puneet Singh Bindra, Ms. Charu Modi, Mr. Rishabh Gupta, Ms. Kriti Dang, Ms. Shanaya Shukla, Ms. Sukriti Seth, Advocates. For Respondents : Ms. Pooja Agrawal, Mr. Rajesh Kr. Agrawal, Advocates for R-2.
ORDER
(Hybrid Mode) 27.05.2025: IA No. 3131 of 2025- This application is filed by the
appellant seeking substitution of the name of the present appellant Aditya
Birla Finance Ltd. with Aditya Birla Capital Ltd. and to take on record the
amended memo of parties accordingly.
Counsel for the appellant has submitted that in CP
(CAA)/6(AHM)2025 in CA (CAA)/49(AHM)2024, titled as 'Aditya Birla
Finance Ltd. vs. Aditya Birla Capital Ltd.', Petition filed under Sections 230
to 232 of the Companies Act. 2013 (for short 'the Act') read with Rule 3 of
the Companies (Compromises, Arrangements, and Amalgamations) Rules,
2016 (for short 'the rules'). Aditya Birla Finance Ltd. has been amalgamated
in Aditya Birla Capital Ltd. By order dated 24.03.2025 passed by National
Company Law Tribunal, Special Bench, Court-1, Ahmedabad.
In this regard, Counsel for the Appellant has drawn our attention to
paragraph 17 (x) in which it has been held that "All proceedings now
pending by or against the amalgamating company shall be continued by or
against the amalgamated company".
Issue notice in the application.
Counsel for the Non-Applicant/Respondent has not raised any
objection. Therefore, the application is allowed. The name of appellant is
now substituted from Aditya Birla Finance Ltd. with Aditya Birla Capital
Ltd. The amended memo of parties filed along with application which is
taken on record.
Comp. App. (AT) (Ins) No. 169 of 2025
Counsel for the appellant has submitted that the present appeal has been
filed against the order dated 20.12.2024 by which an application filed by the
appellant under Section 95 of the Code has been dismissed.
2. Counsel for the appellant has submitted that the impugned
Judgment/order dated 20.12.2024 has already been held to be per incuriam
by this court in CA (AT) (Ins) No. 2282 of 2024 titled as "Anita Goyal vs.
Vistra ITCL (India) Ltd. & Anr." and CA (AT) (Ins) No. 2283 of 2024 titled as
"Ayush Goel vs. Vistra ITCL (India) Ltd. & Anr." dated 23.01.2025.
3. The relevant paragraph of this order is reproduced as under:
"42. Learned Counsel for the Appellant has relied on judgment of NCLT Kolkata Bench in Aditya Birla Finance Ltd. vs. Sarita Mishra and Tata Capital Financial Services Ltd. vs. Arjun Agarwal. Coming to the judgment of NCLT in Aditya Birla Finance Ltd. vs. Sarita Mishra, the said proceeding was initiated by Financial Creditor against Personal Guarantor under Section 95, sub-section (1). The Application came to be rejected by NCLT Kolkata Bench, holding that NCLT shall have jurisdiction only when the proceedings for insolvency resolution or liquidation is pending against the Corporate Debtor and the Application under Section 95 filed by the Financial Creditor was dismissed. It is relevant to notice that NCLT Kolkata Bench had noticed the judgments of this Tribunal in State Bank of India vs. Mahendra Kumar Jajodia as well as Mahendra Kumar Agarwal vs. PTC India Financial Services case, but NCLT proceeded to distinguish the said judgments without there being any real distinction in the issue, which has arisen for consideration. To the similar effect is another judgment of NCLT Kolkata Bench in Tata Capital Financial Services Ltd. vs. Arjun Agarwal decided on 20.12.2024, i.e., on the same date, on which judgment of Aditya Birla Finance Ltd. was delivered.
In the said judgment also the same view was taken by the NCLT Kolkata Bench while dismissing Section 95 Application filed by the Financial Creditor. The above two judgments, delivered by NCLT Kolkata Bench are in teeth of binding judgments of State Bank of India vs. Mahendra Kumar Jajodia and Mahendra Kumar Agarwal vs. PTC India Financial Services (supra) and artificial distinction, which is sought to be drawn by NCLT Kolkata Bench is illusory and without any basis. The NCLT Kolkata Bench was clearly bound by the precedent declared by this Tribunal, especially when judgment of this Tribunal in State Bank of India vs. Mahendra Kumar Jajodia was affirmed by the Hon'ble Supreme Court by its order dated 06.05.2022 as noticed above. In view of the law laid down by this Tribunal in State Bank of India vs. Mahendra Kumar Jajodia where the Application filed by Financial Creditor without there being any pending proceeding against Corporate Debtor, was held to be fully maintainable, both the judgments of NCLT do not lay down correct law and are per incuriam. The above judgments relied by Appellant, thus, cannot support the submissions advanced by the Appellant that NCLT has no jurisdiction to entertain Section 95 Application filed by the Financial Creditor".
4. Counsel for the appellant has requested that he may be allowed to
withdraw this appeal and may be permitted to file an application before the
Ld. Tribunal for recalling of the impugned order on the basis of the order
passed in CA (AT) (Ins) No. 2282 of 2024 because the impugned order has
been held to be per incuriam. Permission is granted.
5. The present appeal is hereby disposed of as having become
infructuous but with liberty as stated herein above.
[Justice Rakesh Kumar Jain] Member (Judicial)
[Justice Mohammad Faiz Alam Khan] Member (Judicial)
[Naresh Salecha] Member (Technical) sr/rr
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