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Bharat Heavy Electricals Ltd vs Anil Goel Liquidator Of Visa Power Ltd. & ...

National Company Law Appellate Tribunal7 August 2019

Ratio decidendi

The rule this decision rests on

The Appellate Tribunal will not entertain an appeal under section 61 of the Insolvency and Bankruptcy Code, 2016 against an interlocutory order of the Adjudicating Authority where the appellant has not been shown to be a person aggrieved by a specific final order; the appellant's remedy against the impugned interim proceedings lies before the Adjudicating Authority itself. Where an appeal is pending before the Adjudicating Authority under section 42 of the Code and has not been decided on merits, and no interim order has been passed on it, the Appellate Tribunal may dispose of the appeal before it by directing the Adjudicating Authority to decide the pending application expeditiously, without expressing any opinion on the merits. Pending such decision, a direction restraining the liquidator from removing or allowing removal of the assets in question may be given to preserve the subject matter of the dispute.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Company Appeal (AT) (Insolvency)No. 802 of 2019 IN THE MATTER OF: Bharat Heavy Electricals Ltd. .....Appellant Vs. Mr. Anil Goel Liquidator of Visa Power Ltd. & Anr. ......Respondents

Present : For Appellant: Mr. Rajiv Ranjan, Sr. Advocate with Mr. Punit Tyagi, Ms. Swastika Chakravarti, Advocates

For Respondents: Mr. Kanishk Khetan, Mr. Nipun Gautam, Advocates for Liquidator

O R D E R

07.08.2019 - The Appellant - 'Bharat Heavy Electricals Ltd.' has preferred

this appeal against the order dated 4th July, 2019 passed by the Adjudicating

Authority ('National Company Law Tribunal') Kolkata Bench, Kolkata which

reads as under: -

"ORDER

Ld. Counsel for the Liquidator appears.

Heard the submissions of the Ld. Counsel for the

Liquidator in CA(IB) 1168/KB/2018. Heard the

....contd.

2

submissions of the Ld. Counsel for respondent no. 13 in

part. Submissions of the Ld. Counsel for the respondent

nos. 1 to 3 are heard in part. It is to be continued

tomorrow, i.e. on 05.07.2019.

CA(IB) 684/KB/2019 is called out. Affidavit-in-

reply is filed by the Liquidator. Petitioner to file rejoinder

within seven days. CA(IB) 792/KB/2019 is also filed by

the creditor of the corporate debtor challenging the order of

liquidation. Liquidator to file affidavit-in-reply within two

weeks by serving copy to the applicant and the applicant

to file rejoinder within seven days. It is also to appear

tomorrow, i.e. on 05.07.2019.

CA(IB) 792/KB/2019 is filed by the respondent no. 2.

Affidavit-in-reply is to be filed within two weeks by giving copy

to the other side. CA(IB)251/KB/2019, CA(IB)792/KB/2019

and 684/KB/2019 are to appear for further consideration on

30.08.2019 and CA(IB) 1168/KB/2019 to appear tomorrow,

i.e. on 05.07.2019 for hearing."

...contd.

3

When we pointed out that no specific finality has been given or order has

been passed to claim that the Appellant is an aggrieved person and entitled to file

appeal u/s 61 of the of the Insolvency & Bankruptcy Code, 2016 ('I&B' Code, for

short), learned counsel for the Appellant submits that CA(IB)684/KB/2019 and

CA(IB)792/KB/2019 were filed by the Appellant for interim order to direct the

liquidator not to sell the assets, on which the Appellant has charge.

Mr. Kanishk Khetan, learned counsel appearing on behalf of the Liquidator

submits that the claim of the Appellant of charge had already been rejected by

the liquidator. In reply, learned counsel for the Appellant submits that the

appeal is u/s 42 of the 'I&B' Code which has not been decided on merit and no

Interim Order has been passed.

In the facts and circumstances, while we are not expressing any opinion,

we direct the Adjudicating Authority ('National Company Law Tribunal') Kolkata

Bench, Kolkata to decide the appeal preferred by the Appellant u/s 42 of the 'I&B'

Code on merit after hearing the Appellant and the Liquidator at an early date

preferably by 30th August, 2019 which is the next date fixed for hearing.

...contd.

4

In the meantime, the liquidator will not allow any person to remove the

assets in question, even if it is sold but if not yet removed.

The appeal is disposed of with the aforesaid observations. No costs.

[Justice S. J. Mukhopadhaya] Chairperson

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

[Kanthi Narahari] Member (Technical)

ss/gc

Company Appeal (AT) (Insolvency)No. 802 of 2019

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