Dbs Bank India Ltd vs Edu Smart Services Pvt. Ltd. & Ors

Company Appeal (AT) (Insolvency) No. 466 of 2019 [ arising out of Order dated 10th April, 2019 by NCLT, Principal Bench, New Delhi in (IB) No. 102 (PB)/2017 ]

IN THE MATTER OF:

DBS Bank India Ltd. ...Appellant

Versus

Edu Smart Services Pvt. Ltd. & Ors. ...Respondents

Present: For Appellant : Mr. Sakal Bhushan and Mr. Bhuran Ravindran, Advocates

For Respondents : Ms Ritu Rastogi, Advocate for Respondent Nos. 1, 2 and 8

Mr. Ranje R. Raj, Advocate for Respondent No. 5

Mr. PBA Srinivsan, Ms. I. Kailash and Mr. Abhay Kumar, Advocates for Respondent Nos. 7, 10, 11 & 13 Mr. Jayant Mehta, Ms. Misha, Mr. Shantanu Chaturvedi and Ms. Charu Bansal, Advocates for Respondent No. 9

JUDGMENT

SUDHANSU JYOTI MUKHOPADHAYA, J.

In the 'Corporate Insolvency Resolution Process' in 'Edu Smart Service

Pvt. Ltd.', the Appellant - 'DBS Bank Ltd.' filed an application with a prayer

for issuance of direction to reconstitute the 'Committee of Creditors' by

excluding the double claims of the Respondents. A reliance was placed on 2

the decision of this Appellate Tribunal in 'Dr. Vishnu Kumar Agarwal vs.

M/s. Piramal Enterprises Ltd.' in 'Company appeal (AT) (Insolvency) NO. 346

of 2018.'

2. During the course of hearing, the learned counsel for the Axis Bank

place a reliance on para 63 of the judgment of this Appellate Tribunal inter

parties in 'Export Import Bank of India vs. Resolution Professional

JEKPL Pvt. Ltd.' in 'Company Appeal (AT (Insolvency) No. 304 of 2017 & other

connected appeals' dated 14th August, 2018' which reads as under:-

"63. Having held that the 'Export Import Bank of India'

is 'Financial Creditor' in relation to 'JEKPL Pvt.

Ltd.' (Corporate Debtor) and 'Axis Bank Limited'

is 'Financial Creditor' in relation to 'Edu Smart

Services Pvt. Ltd.' (Corporate Debtor), we hold and

direct respective 'Resolution Professionals' and

'Adjudicating Authorities' to treat the Appellant

Banks as members of their respective Committee

of Creditors, who in their turn are directed to hold

meeting of Committee of Creditors in accordance

with law and reconsider/consider the Resolution

Plan(s) submitted in each Corporate Insolvency

Resolution Process which are in accordance with

Section 30(2) of the I&B Code."

3. In view of the aforesaid decision of this Appellate Tribunal, the

Adjudicating Authority by impugned order dated 11th April, 2019 refused to

Company Appeal (AT) (Insolvency) No. 466 of 2019 3

take any contrary view with observation that if any clarification is required,

the Appellant - 'DBS Bank Ltd.' is free to move before the appropriate Forum.

4. Learned counsel appearing on behalf of the Appellant again placed

reliance on the decision of this Appellate Tribunal in 'Dr. Vishnu Kumar

Agarwal v. M/s. Piramal Enterprises Ltd.(Supra)' that for the 'same set of debt'

claim cannot be filed by 'same Financial Creditor' in two separate 'Corporate

Insolvency Resolution Processes'. It was submitted that the decision of this

Appellate Tribunal in 'Export Import Bank of India (Supra)' on 14th August,

2018 would apply inter se parties which is not binding in other cases.

5. Respondent No. 7 - 'IDBI Bank Ltd.'; Respondent No. 9 - 'Axis Bank

Ltd.'; Respondent No. 10 - 'State Bank of India'; Respondent No. 11 - 'Canara

Bank' and Respondent No. 13 - 'Central Bank of India' appeared and opposed

the prayer.

6. Learned counsel appearing on behalf of the Respondents submitted

that the present appeal is not maintainable as the judgment in 'Edu Smart

Service Pvt. Ltd.' earlier decided by this Appellate Tribunal has reached

finality as the Hon'ble Supreme Court has dismissed the appeal by speaking

order.

7. It is further submitted that this Appellate Tribunal if any contrary

judgment will be given that will amount to review of own order by this

Appellate Tribunal without asking for review of the original decision in 'Edu

Smart Service Pvt. Ltd.'

Company Appeal (AT) (Insolvency) No. 466 of 2019 4

8. On perusal of the record and hearing the parties, we find that the

question relating to induction of Axis Bank as a member of the 'Committee of

Creditors' in the case of 'Edu Smart Service Pvt. Ltd.', reached finality as the

said judgment dated 14th August, 2018 passed in 'Company Appeal (AT)

(Insolvency) No. 302 of 2018' has been affirmed by the Hon'ble Supreme

Court by its order dated 23rd January, 2019 passed in Civil Appeal No.

10134/2018 which was preferred by 'K.B. Educational Services Pvt. Ltd.'

In the aforesaid circumstance, there is no scope for the Adjudicating

Authority to grant the relief to the Appellant, as was sought for. We find no

illegality in the impugned order, the Appeal is accordingly dismissed. No

costs.

[Justice S.J. Mukhopadhaya] Chairperson

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

[ Kanthi Narahari ] Member (Technical) New Delhi

18th November, 2019

//ns//

Company Appeal (AT) (Insolvency) No. 466 of 2019