Bharat Heavy Electricals Ltd vs Mr. Ravi Shankar Devarakonda ...

Bharat Heavy Electricals Ltd. ...Appellant

Versus

Mr. Ravi Shankar Devarakonda ...Respondent Liquidator of M/s. Coastal Projects Ltd.

Present: For Appellant: Mr. Punit Tyagi, Mr. Aditya Thyagarajan, Advocates For Respondents: Ms. Samiksha Godiyal, Advocate

ORDER

(Virtual Mode)

24.02.2022: Heard Learned Counsel for the Appellant and Learned

Counsel for the Respondent.

2. The Appellant has filed this Appeal challenging the Order of the

Adjudicating Authority dated 16th January, 2020 by which order the

Adjudicating Authority has granted approval to the Liquidator as

contemplated under Section 33(5) of the Insolvency and Bankruptcy Code,

2016 for institution of legal proceedings.

3. Learned Counsel for the Appellant submits that he is not questioning

the approval granted by the Adjudicating Authority but the limited grievance

which has been raised by the Appellant is that the Adjudicating Authority has

used the word 'the leave is granted ex post facto'. Submissions of the Learned

Counsel for the Appellant is that the said observations are likely to be

misinterpreted to the effect that NCLT has also condoned the delay in filing

the Application under Section 34 of the Arbitration and Conciliation Act, 1966. 2

4. Learned Counsel for the Respondent submits that the Liquidator has

filed the Application on 01st April, 2019 under Section 34 of the Arbitration

and Conciliation Act, 1966 which is pending before the City Civil Court,

Bangalore. Learned Counsel for the Respondent further submits that from the

day when the Application was filed, it was within time, if the approval is not

taken into consideration.

5. Be that as it may, the Adjudicating Authority while passing the Order

under Section 33(5) granting approval was not to consider the maintainability

and legality of the Application to be filed or filed by the Liquidator under

Section 34 of the Code. It is the City Civil Court which has to take decision

regarding all these issues. We are thus of the view that observations in

Paragraph 11 of the Impugned Order in so far as the Adjudicating Authority

observed 'the leave is granted ex post fact' does not determine any issue by the

Adjudicating Authority and all contentions and issues are left open to be

considered and argued by the parties before the City Civil Court, Bangalore.

We are of the view that there is no ground to interfere with the Order

impugned.

With these observations and clarifications, we dispose of the Appeal.

[Justice Ashok Bhushan] Chairperson

[Dr. Alok Srivastava] Member (Technical)

Basant/nn

Company Appeal (AT) Ins. No. 383 of 2020