Agarpara Company Ltd vs Agarpara Jute Mills Company Ltd & Ors

Company Appeal (AT) (Ins.) No. 289 of 2019

IN THE MATTER OF:

Agarpara Company Ltd. ...Appellant

Versus

Agarpara Jute Mills Company Ltd. & Ors. ...Respondents

Present: For Appellant : Ms. Geeta Luthra, Senior Counsel with Mr. Sidhartha Barua, Ms. Shivani Luthra Lohiya, Ms. Asmita Narula, Mr. Gaurav Kejriwal and Ms. Indrani Mukherjee, Advocates

For 1st Respondent: Mr. Gopal Jain, Senior Advocate with Ms. Atanu Mukherjee and Mr. Divyank Tyagi, Advocates

For 2nd Respondent : Mr. Avnish Garg and Mr. Arjun Aggarwal, Advocates

ORDER

27.03.2019 'M/s. Agarpara Jute Mills Company Limited' (for short, 'the

Company') being a sick company moved before the 'Board for Industrial and

Financial Reconstruction' (BIFR) which sanctioned the scheme. 'M/s. Agarpara

Company Limited', which is a shareholder of 'M/s. Agarpara Jute Mills Company

Limited' moved before the 'Appellate Authority for Industrial and Financial

Reconstruction' (AAIFR) . While the matter was pending, the Appellate Authority

was dissolved pursuant to 'SICA Repeal Act, 2003'.

2. As there being no remedy, by Notification No. S.O. 3569 (E) dated 25th

November, 2016, Section 4(b) of the 'SICA Repeal Act, 2003' was

amended/modified, which reads as follows:

2

"AFTER AMENDMENT OF SICA (REPEAL) ACT, 2003,

W.E.F. 1ST NOVEMBER, 2016:

4. Consequential provisions - On the dissolution of the

Appellate Authority and the Board -

(a)XXXX

(b)on such date as may be notified by the Central

Government in this behalf, any appeal preferred to the

Appellate Authority or any reference made or inquiry

pending to or before the Board or any proceeding of

whatever nature pending before the Appellate

Authority or the Board under Sick Industrial

Companies (special provisions) Act, 1985 (1 of 1986)

shall stand abated:

Provided that a company in respect of which such appeal

or reference or inquiry stands abated under this clause

may make reference to the National Company Law

Tribunal under the Insolvency and Bankruptcy Code,

2016 within one hundred and eighty days from the

commencement of the Insolvency and Bankruptcy Code,

2016 in accordance with the provisions of the Insolvency

and Bankruptcy Code, 2016.

Company Appeal (AT) (Ins.) No. 289 of 2019 3

Provided further that no fees shall be payable for making

such reference under Insolvency and Bankruptcy Code,

2016 by a company whose appeal or reference or inquiry

stands abated under this clause]"

3. In the meantime, the appellant moved before the Hon'ble High Court of

Delhi, who directed the appellant - 'M/s. Agarpara Company Limited' to move

before the Adjudicating Authority (National Company Law Tribunal), Kolkata

Bench, Kolkata. One of the respondent challenged the same before the Hon'ble

Supreme Court by filing a 'Special Leave to Appeal (Civil) No. 3302/2019' -

'Rabindra Kumar Walia vs. Union of India & Ors.'. However, on 4th

February, 2019 when the matter was taken up, the counsel for petitioner before

the Hon'ble Supreme Court sought permission to withdraw the 'special leave

petition', which was allowed and dismissed as withdrawn.

4. In view of the aforesaid fact, the appellant - 'M/s. Agarpara Company

Limited' moved before the NCLT, Kolkata Bench, who has dismissed the

application by the impugned order dated 5th February, 2019 as not maintainable

referring to the decision of this Appellate Tribunal in 'Pr. Director General of

Income Tax (Admn. & TPS) vs. M/s. Spartek Ceramics India Ltd. & Anr. -

Company Appeal (AT)(Insolvency) No. 160 of 2017 etc.' decided on 28th May, 2018

and the decision of the Hon'ble Supreme Court in 'M/s. Spartek Ceramics India

Ltd. vs. Union of India & Ors.' - Civil Appeal Nos. 7291-7292 of 2018' disposed

of on 25th October, 2018.

5. In 'Pr. Director General of Income Tax (Admn. & TPS) (Supra), this Appellate

Tribunal held that the amendment made by the Central Government vide

Company Appeal (AT) (Ins.) No. 289 of 2019 4

Notification dated 25th November, 2018 substituting Section 4(b) of the 'SICA

Repeal Act, 2003' was without jurisdiction and on that basis the application

before the Adjudicating Authority was not maintainable under the 'Insolvency

and Bankruptcy Code, 2016' (for short, the 'I&B Code'). The aforesaid decision

was challenged before the Hon'ble Supreme court in 'M/s. Spartek Ceramics

India Ltd.' (Supra) wherein the Hon'ble Supreme while upheld the decision of

this Appellate Tribunal passed on 28th May, 2018, on the ground that the appeal

was not maintainable. In view of the fact that the Notification dated 24th May,

2017 travels beyond the scope of the removal of the difficulties, set aside the part

of the decision on merit as was decided by this Appellate Tribunal. Hon'ble

Supreme Court held :

"4. As the impugned judgment dated 28.05.2018

has set aside this Notification, and which

has been upheld by us, the NCLAT, in

both these cases, has dismissed the two appeals

so filed, following the main judgment of

28.05.2018. This being the case, we revive the

two writ petitions that had been before the High

Court of Delhi in both the appeals before us with

liberty to the appellants to amend the aforesaid

writ petitions within a period of four weeks from

today."

6. In view of the specific finding of the Hon'ble Supreme Court in 'M/s.

Spartek Ceramics India Ltd.' (Supra), we are not inclined to interfere with the

Company Appeal (AT) (Ins.) No. 289 of 2019 5

impugned judgment dated 5th February, 2019 whereby the Adjudicating

Authority held that petition filed by the appellant - 'M/s Agarpara Company

Limited' is not maintainable.

7. Learned counsel for the parties submit that the appellant cannot move

before the Hon'ble High Court of Delhi in view of the decision of the 'Special Leave

Petition (Civil) No. 3302/2019'. However, from the order dated 4th February,

2019, we find that the learned counsel for the petitioner sought permission to

withdraw the 'special leave petition'. So the 'SLP' was dismissed as withdrawn

in the aforesaid background, the order passed being not binding on any of the

party, following the decision in 'M/s. Spartek Ceramics India Ltd.' (Supra) we are

of the view that the Writ Petition preferred by the appellant stands revived before

the Hon'ble High Court of Delhi and in terms of the liberty given by the Hon'ble

Supreme Court in the case of 'M/s. Spartek Ceramics India Ltd.' (Supra), the

appellant may also seek to amend the aforesaid Writ Petition within four weeks.

8. In view of the aforesaid finding, we are not deciding the question of

maintainability as raised by some of the advocates for the respondents as the

matter can be decided by the Hon'ble High Court of Delhi.

9. The appeal stands disposed of with aforesaid observation.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice A.I.S. Cheema ] Member (Judicial)

/ns/gc/

Company Appeal (AT) (Ins.) No. 289 of 2019