Dinesh Kumar Gupta vs Pantel Technologies Pvt. Ltd
- CitationCompany Appeal (AT) (Insolvency) No.830 of 2022
Ratio decidendi
The rule this decision rests on
Where a corporate debtor is under liquidation and the claimant has already been directed by the Adjudicating Authority to pursue its claim before the Liquidator, and has in fact lodged and had admitted such a claim, it is an abuse of process to file a fresh application against the corporate debtor seeking the same relief; the Adjudicating Authority is entitled to dismiss such an application and to impose costs for it.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Dinesh Kumar Gupta Liquidator Jarvis Infratech Pvt. Ltd. ...Appellant
Versus
Pantel Technologies Pvt. Ltd. Through Liquidator Mr. Gagan Gulati ...Respondent
Present: For Appellant: Mr. Govind Bhardwaj, Advocate.
For Respondent:
ORDER
(Virtual Mode)
29.07.2022: Heard learned counsel for the Appellant. This Appeal has
been filed against the order dated 10.05.2022 passed by the Adjudicating
Authority (National Company Law Tribunal), New Bench by which order I.A.
No. 2165 of 2022 has been rejected. In the I.A. No. 2165 of 2022 following
prayers have been made:
"B. To adjudicate that the sum of Rs.
60,00,000/- was transferred by Corporate Debtor to the Respondent Company, in fraudulent preference to all the other creditors of the Corporate Debtor and thus classifies as Preferential Transaction under Section 43 of IBC, 2019;
C. To issue directions in terms of Section 44 of IBC, 2016 to the Liquidator of Respondent
Cont'd.../ 2
Company for immediate re-instatement of Rs.55,70,000/- in the books of the Corporate Debtor by making payment of Rs.55,70,000/- to the Corporate Debtor, prior to the distribution of Liquidation Estate amongst the stakeholders of Respondent Company."
2. This Appeal has been filed by the Liquidator aggrieved of order dated
10.05.2022. The Liquidator has filed an application I.A. No. 111 of 2022
before the Adjudicating Authority in which the Respondent Company was also
a party. It was pointed out that the Respondent Company is under liquidation
by order dated 17.12.2021. The Appellant herein who was applicant was
advised that he may file a claim before the Liquidator of Respondent
Company. The following observations have been made in the order dated
19.01.2022 by the Adjudicating Authority:
"So far as respondent no. 1 is concerned, Ld. Counsel appearing for the applicant conceded that R-1 is under liquidation, so, considering this fact so far R-1 is concerned, in view of the Section 33(5) no legal proceedings can be initiated if the corporate person is under liquidation. Therefore, the applicant is well advised to take appropriate steps against the respondent no. 1 for deleting the name of the respondent no. 1 from the cause title of the application."
3. The order dated 19.01.2022 was never questioned by the Appellant
rather the Appellant filed his claim before the Liquidator of Respondent
Company Appeal (AT) (Insolvency) No. 830 of 2022 3
Company, which was admitted by the Liquidator. The Adjudicating Authority
has by the impugned order rejected the application and in the last para of the
order has made following observations:-
"Considering the submission, in our considered view, when the claim has been admitted by the Liquidator, then under such circumstances, the Applicant has filed an application against the Company, which is under liquidation, that has not been explained. It appears that the Liquidator though aware with the provisions of law that as per Section 33(5), no suit or other legal proceeding shall be instituted by or against the corporate debtor, filed the present application. In our considered view, it is nothing but to misuse the process of law. Therefore, it is a serious matter. Accordingly, we dismiss the application subject to payment of cost of Rs. 50,000/- be deposited in the Prime Minister Relief Fund within a week from today. The said amount shall be paid from the personal fund of the Liquidator."
4. We are of the view that no error has been committed by the Adjudicating
Authority in rejecting I.A. No. 2165 of 2022 filed by the Appellant. When the
Adjudicating Authority has already passed an order dated 19.01.2022
observing that Appellant should file claim before the Liquidator of the
Respondent Company and he himself filed the claim, there was no occasion
for the Appellant to file I.A. No. 2165 of 2022 again making the prayers as
noticed above. We are of the view that the Adjudicating Authority has rightly
Company Appeal (AT) (Insolvency) No. 830 of 2022 4
observed that the application is nothing but abuse of process of law. However,
the cost imposed by the Adjudicating Authority is reduced to Rs.10,000/-
(Rupees Ten Thousand Only). Appeal is accordingly disposed of.
[Justice Ashok Bhushan] Chairperson
[Justice M. Satyanarayana Murthy] Member (Judicial)
[Barun Mitra] Member (Technical) Archana/nn
Company Appeal (AT) (Insolvency) No. 830 of 2022
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