Anant Kajare vs Eknath Aher & Anr

Anant Kajare ...Appellant

Vs.

Eknath Aher & 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 "M/s. Royal

Twinkle Star Club 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. 895/I&BC/NCLT/MB/MAH/2017 alleging

initiation of 'Corporate Insolvency Resolution Process' against 'M/s.

Royal Twinkle Star Club 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

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'I&B Code' with further request to dismiss the said Petition (CP. No.

895/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-

'M/s. Royal Twinkle Star Club 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

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

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. 296 of 2017