Deb Kumar Majumder & Ors vs State Bank Of India

DEB Kumar Majumder & Ors. ...Appellants

Versus

State Bank of India ...Respondent

Present:

For Appellants : Mr. Arjun Asthana, Ms. Sreenita Ghosh and Mr. Debanjan, Advocate

ORDER

14.01.2019 The appellants are workmen/employees of 'M/s. Tantia

Constructions Limited'. The 'State Bank of India' (Financial Creditor) has

filed an application under Section 7 of the I&B Code for initiation of the

'corporate insolvency resolution process' against M/s. Tantia Constructions

Ltd. (Corporate Debtor). The appellants moved an application for intervention

by filing CA (IB)646/KB/18 to bring to the notice that the winding up

proceedings has already been initiated under Section 433(e) and Section 434

of the Companies Act against M/s. Tantia Constructions Ltd. (Corporate

Debtor) and thereby the application under Section 7 is not maintainable in

terms of Section 11 of the I&B Code. The Adjudicating Authority held that

the intervener has no locus standi and adjourned the matter for argument on 2

17th January, 2019 by the impugned order dated 3rd January, 2019, which is

under challenge.

We agree with the observations made by the Adjudicating Authority at

the stage of application filed under Section 7 that no person has right to claim

for hearing except the 'Corporate Debtor'. No other 'Financial Creditor' or

'Operational Creditor' or any other creditor is required to be heard except the

'Financial Creditor' who has filed an application under Section 9 of the I&B

Code. The Adjudicating Authority is required to notice whether there is a

'debt' and 'default' committed by the 'corporate debtor' if the application under

Section 7 is filed. On the other hand, if the application is under Section 9,

the Adjudicating Authority is to notice whether there is a 'debt' and 'default'

and whether there is a 'pre-existing dispute'. However, the Adjudicating

Authority should also keep in mind the provisions of Section 11 whereunder

application under Section 7 or 9 is not maintainable if winding up proceedings

has been initiated against the 'corporate debtor' as decided by this Appellate

Tribunal in "M/s. Unigreen Global Private Limited vs. Punjab National

Bank & Ors. - Company Appeal (AT)(Insolvency) No. 81 of 2017". In the

aforesaid background while we do not allow the appellants to oppose or

support the application at the stage of admission, direct the Adjudicating

Authority to decide the matter taking into consideration the fact brought by

the appellant to its notice to find out whether a winding up proceedings has

already been initiated against the 'corporate debtor' or not. If so required, the

State Bank of India and M/s. Tantia Construction Limited should be asked to

clarify the same.

Company Appeal (AT) (Insolvency) No. 44 of 2019 3

If the appellants are aggrieved by the order passed by the Adjudicating

Authority (National Company Law Tribunal), Kolkata Bench, in such case, the

appellants will challenge the same before this Appellate Tribunal and raise all

the issues as raised in this appeal. The appeal stands disposed of with the

aforesaid directions and observations. No cost.

[Justice S.J. Mukhopadhaya] Chairperson

[ Justice Bansi Lal Bhat ] Member (Judicial) /ns/gc/

Company Appeal (AT) (Insolvency) No. 44 of 2019