Bhagwati Power And Steel Ltd vs Senior Divisional Commercial Manager ...

NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH, NEW DELHI Company Appeal (AT) (Ins.) No. 796 of 2022 IN THE MATTER OF: Bhagwati Power and Steel Ltd. ...Appellant

Versus

Senior Divisional Commercial Manager, South Eastern Railway & Ors. ...Respondent Present: For Appellant: Mr. Mahesh Agrawal, Mr. Abhijeet Sinha, Mr. Shivam Shukla, Ms. Geetika Sharma, Advocates For Respondent: Mr. Harish Vaidyanathan Shankar, CGSC with Srish Kumar Mishra, Sagar Mehlavat, Alexander M. P., Advocates

Per: Justice Rakesh Kumar Jain: (Oral) ORDER

05.01.2023: This appeal is directed against the order dated

12.05.2022, passed by the Adjudicating Authority (National Company Law

Tribunal, Kolkata Bench-1, Kolkata) by which an application bearing I.A. (IB)

No. 881/KB/2021 filed in CP (IB) No. 387/KB/2017, under Section 60(5) of

the Insolvency and Bankruptcy Code, 2016 (in short 'Code') by Bhagwati

Power and Steel Limited (SRA) & Amalgam Steel (CD) against Sr. Divisional

Commercial Manager, South Eastern Railway, Chakradharpur, Chief

Commercial Manager, (FM), South Eastern Railway, Kolkata and Chief Goods

Supervisor, Kandra Station, Chakradharpur, Jharkhand, claiming the

following reliefs "(a). An order for quashing the claims in the demand notices

dated 11.02.2016, 27.08.2016 and 13.06.2016. (b). An order directing the

Respondents to desist from making any further claims or desist from the

Applicant for any period prior to 07.12.2018 being the date, when the

resolution plan of the Applicant was approved by this Adjudicating Authority"

has been dismissed by the Adjudicating Authority in the following manner:-

"In I.A. (IB) No. 881/KB/2021, since the management of the Corporate Debtor had filed a writ petition being W.P. No. 3153 of 2016, and the matter is pending adjudication before Hon'ble Jharkhand High Court, the application stands dismissed."

2. The order passed by the Hon'ble Jharkhand High Court in Writ Petition

(C) No. 3153 of 2018 is as follows:

"10/23.12.2021 I.A. No. 7110/2021 The present interlocutory application has been filed on behalf of the petitioner for withdrawal of the present writ petition in view of the fact that the petitioner has approached the National Company Law Tribunal, Kolkata Bench under Section 60(5) read with Section 74(3) of the Insolvency and Bankruptcy Code, 2016 read with Rule 11 of the National Company Law Tribunal Rules, 2016. Mr. Mahesh Tewari, learned counsel appearing on behalf of the respondent-Railway, has got no objection to the same. Having heard learned counsel for the parties and for the reasons stated in the present interlocutory application, the petitioner is permitted to withdraw the present writ petition. The present interlocutory application stands disposed of.

W.P.(C) No. 3153 of 2018 In view of the order dated 23.12.2021 passed by this Court in I.A. No. 7110/2021, the present writ petition is dismissed as withdrawn.

Consequently, I.A. No. 3486/2019 also stands disposed of."

3. Counsel for the Appellant has submitted that by the same impugned

order another application bearing I.A. (IB) No. 983/KB/2021 was also

dismissed in the same manner i.e. in view of the pendency of the writ petition

no. 4178 of 2016 filed at the instance of the management of the Corporate

Debtor which was challenged by way of CA (AT) (Ins) No. 797 of 2022 titled as

'Bhagwati Power and Steel Ltd. Vs. Central Coalfields Ltd. & Anr., which has

been disposed of by a coordinate bench of this Tribunal on 15.12.2022 with

the following order:

"Heard Learned Counsel for the parties.

2. This Appeal has been filed against the Order dated 12th May, 2022 passed in I.A. No. 983/KB/2021 filed by the Appellant-the Successful Resolution Applicant. The Adjudicating Authority has rejected the Application observing that management of the Corporate Debtor has filed the Writ Petition being Writ Petition No. 4178 of 2016 and the matter is pending adjudication before the Hon'ble Jharkhand High Court hence the Application has been dismissed.

3. Learned Counsel for the Appellant submits that Writ Petition No. 4178 of 2016 stood withdrawn on 23rd December, 2021. Copy of the Order of the High Court of Jharkhand in Writ Petition No. 4178 of 2016 has been filed as Annexure-A11 to the Appeal.

4. In view of the aforesaid, we are of the view that Adjudicating Authority ought to consider the I.A. No. 983/KB/2021 after hearing both the parties. Learned Counsel for the Respondent No.1 is also permitted to file a Reply to the Application I.A. No. 983/KB/2021 before the Adjudicating Authority within four weeks from today.

5. In result, Impugned Order dated 12th May, 2022 with regard to I.A. No. 983/KB/2021 is set aside and the matter is remitted back to the Adjudicating Authority to consider afresh in accordance with law."

4. In view of the aforesaid facts and circumstances, Counsel for the parties

are ad-idem that the present appeal may also be disposed of in terms of the

order dated 15.12.2022 passed in 'Bhagwati Power and Steel Ltd.' (Supra).

5. Consequently, this appeal is hereby allowed. The order dated

12.05.2022 passed in I.A. (IB) No. 881/KB/2021 is hereby set aside and the

matter is remanded back to the Adjudicating Authority to consider afresh in

accordance with law.

6. The parties are directed to appear before the concerned Adjudicating

Authority on 23rd January, 2023.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

Sheetal/Manu