Amod Amladi vs Mrs. Sayali Rane & Anr

Amod Amladi ...Appellant

Vs.

Mrs. Sayali Rane & Anr. ...Respondents

Present: For Appellant: - Mr. Sanjiv Sen, Senior Advocate with Mr. Rahul Gaikwad, Mr. Ajay Kumar and Mr. Kapil Joshi, Advocates.

ORDER

30.11.2017- The Appellant, who claims to be Investor of "Citrus Check

Inns Limited", a Company incorporated under the Companies Act, 1956

and 2013, filed intervention Petition before the Adjudicating Authority

(National Company Law Tribunal) Mumbai Bench, Mumbai in CP No.

896/I&BC/NCLT/MB/MAH/2017 alleging initiation of 'Corporate

Insolvency Resolution Process' against 'Citrus Check Inns Limited' as

nullity, the initiation under Section 9 of the Insolvency and Bankruptcy

Code, 2016 (hereinafter referred to as 'I&B Code') having made

fraudulently by the 'Operational Creditor' in collusion with the

Directors. Before the Adjudicating Authority prayer was made to recall

the order dated 2nd May, 2017 passed by the Adjudicating Authority

admitting the application under Section 9 of the 'I&B Code' with further

Contd/-.............

Company Appeal (AT) (Insolvency) No. 295 of 2017 -2-

request to dismiss the said Petition (CP. No.

896/I&BC/NCLT/MB/MAH/2017).

2. The Adjudicating Authority having noticed all the relevant facts

and submissions made on behalf of the Appellant, rejected the prayer

by impugned order dated 3rd October, 2017 on the ground that the

Adjudicating Authority has no power to recall the order dated 2nd May,

2017 or to dismiss the Company Petition after admission of the

application under Section 9 of the 'I&B Code' for initiation of 'Corporate

Insolvency Resolution Process'. The impugned order dated 3rd October,

2017 is under challenge in the present appeal.

3. Learned senior counsel appearing on behalf of the Appellant

submitted that the Company Petition under Section 9 of the 'I&B Code'

preferred by the 'Operational Creditor' was filed fraudulently in

connivance with the Directors and due to the same, by consent order

'Corporate Insolvency Resolution Process' was initiated on 2nd May,

2017. According to him, the 'Operational Creditor' is also liable to be

punished under Section 65 of the 'I&B Code' for not bringing relevant

facts to the notice of the Adjudicating Authority that the Respondent-

'Citrus Check Inns Limited' is not a 'Corporate Debtor' and no Petition

under Section 9 of the 'I&B Code' is thus maintainable. It is also

submitted that the order passed by SEBI, as modified by Securities

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Appellate Tribunal (SAT) which was also upheld by the Hon'ble Supreme

Court by judgment dated 9th November, 2016 in Civil Appeal No. 6590-

91/2016 were not brought to the notice of the Adjudicating Authority.

4. Heard learned counsel for the Appellant. Admittedly, the

Appellant is an Investor therefore, the Appellant cannot claim to be an

'aggrieved person' for preferring appeal against the order dated 2nd May,

2017 passed by Adjudicating Authority whereby the application under

Section 9 of the 'I&B Code' was admitted. In fact, the Appellant being

an investor is entitled to file its claim before the 'Insolvency Resolution

Professional.

5. Further, as the order dated 2nd May, 2017 is not under challenge

in this appeal this Appellate Tribunal cannot express any opinion with

regard to the order of admission dated 2nd May, 2017. If the said order

dated 2nd May, 2017 is allowed to be challenged, the appeal will be

barred by limitation under sub-section (2) of Section 61 of the 'I&B

Code'.

6. In absence of any power of review or recall vested with the

Adjudicating Authority, we hold that the Adjudicating Authority rightly

refused to recall the order of admission dated 2nd May, 2017.

7. For the reasons aforesaid, no relief can be granted. In absence of

any merit the appeal is dismissed. However, the impugned order dated

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3rd October, 2017 passed by the Adjudicating Authority, Mumbai and the

order of this Adjudicating Authority will not come in the way of Appellant

Investor to file its claim before the 'Insolvency Resolution Professional.

(Justice S.J. Mukhopadhaya) Chairperson

(Justice Bansi Lal Bhat) Member(Judicial) Ar/uk

Company Appeal (AT) (Insolvency) No. 295 of 2017