Miss Lucy
← All judgments

Dr Vivek Agarwal vs Kanak Resource Management Ltd & Anr

National Company Law Appellate Tribunal26 August 2020

Ratio decidendi

The rule this decision rests on

Where a Tribunal's earlier order has granted liberty to the parties to apply again upon a further development, a subsequent application seeking revisit of that order, made without any development or change of circumstances since the order was passed, is unwarranted and does not merit interference. Where an adjudicating authority dismisses a company petition in terms of an appellate order that stays proceedings against group companies, the dismissal is an exercise of that stay and is not rendered erroneous merely because the authority's order disposed of an application without expressly stating an intention to dismiss the petition; the plain reading of the order governs its scope.

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

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICompany Appeal (AT) (Insolvency) No. 672 of 2020IN THE MATTER OF:

Dr. Vivek Agarwal ...Appellant

Versus

Kanak Resource Management Ltd. & Anr. ...Respondents

Present: For Appellant: Mr. Amit Agrawal, Ms. Radhika Yadav and Ms. Kushagra Agarwal, Advocates. For Respondents: Mr. Abhishek Kumar, Mr. Vikas Goel and Mr. Rajesh Kumawat, Advocates for R-1. Mr. Sanjeev Ahuja, Advocate for R-2.

ORDER

(Through Virtual Mode)

26.08.2020: This appeal has been preferred for setting aside of order dated

12.05.2020 passed in CP (IB) No.89 (PB)/2017 by virtue whereof the Adjudicating

Authority (National Company Law Tribunal), Principal Bench, New Delhi declined

to revisit its own order dated 21.10.2019 on the ground that once main Company

Petition was dismissed, the Adjudicating Authority becomes functus officio. These

observations were made in the context of Appellant seeking appointment of an

Administrator for the Corporate Debtor i.e. 'M/s Kanak Resources Management

Ltd.' and Resolution Professional in CA No. 2872/2019 and CA No. 1330(PB)/2020

in CP No. (IB) No. 89(PB)/2017.

Cont'd..../ -2-

2. After hearing learned counsel for the Appellant, it comes to fore that the

Corporate Debtor is one of the Group Companies of IL&FS. CIRP was commenced

against the Corporate Debtor on 25.09.2017 and a Resolution Professional was

appointed. Subsequently on 15.10.2018, this Appellate Tribunal stayed

proceedings against the subsidiaries of IL&FS Group. When the Resolution

Professional sought clarification in regard to CIRP pending against the Corporate

Debtor, the Adjudicating Authority, vide order dated 21.10.2019 dismissed the

main Company Petition with following observations:

"3. An application emerging from these proceedings was

filed before the Hon'ble Appellate Tribunal with a prayer for

clarifying the issue as to whether the moratorium would impact

the proceedings before us. Hon'ble Appellate Tribunal in its order

dated 02.09.2019 has refused to entertain the issue in the

aforesaid application being I.A. No. 2566 of 2019 and left the

matter to be decided by the Adjudicating Authority-NCLT. Liberty

has been given to file any application before us. In the order

dated 25.10.2018 it was admitted that the corporate debtor

namely Kanak Ressounrce Management Ltd. is a group company

of IL & FS. We do not need with to go any further except reading

para-I of the Hon'ble Appellate Tribunal order dated 15.10.2018

Company Appeal (AT) (Insolvency) No. 672 of 2020 -3-

which shows that institution or continuation of suits or any other

proceedings by any party or person or Bank or Company in

respect of group companies in any Court of Law/Tribunal would

remain stayed. Accordingly, the petition is dismissed at this

stage with liberty to the parties to file an appropriate application

if any other development warranting intervention of NCLT-

Adjudicating Authority arises.

4. CA-2222(PB)/2019 stands disposed of"

3. On a plain reading of the aforestated order it is manifestly clear that since

this Appellate Tribunal had, in terms of order dated 15.10.2018 stayed the

institution or continuation of suits or any other proceedings by any party or person

or bank or company in respect of group companies in any Court of Law/ Tribunal,

the Adjudicating Authority was left with no option but to dismiss the Company

Petition. It is not disputed that the Adjudicating Authority has granted liberty to

the parties to come back and seek intervention if any other development so

warrants. It is therefore futile on the part of Appellant to contend that the

Adjudicating Authority only intended to dispose of CA No. 2222(PB)/2019 and did

not intend to dismiss Company Petition No. (IB) No. 89(PB)/2017. No fault can be

found with the impugned order as liberty has already been granted to the parties

Company Appeal (AT) (Insolvency) No. 672 of 2020 -4-

to seek intervention by the Adjudicating Authority if any further development in

regard to the IL&FS Group Companies insolvency resolution so warrants. In the

wake of the liberty granted it was unwarranted on the part of the Appellant to

approach the Adjudicating Authority for revisiting of its order dated 21.10.2019

without any development/ change of circumstances having taken place in the

IL&FS Group Companies insolvency resolution matter.

4. We find this appeal devoid of merit, same is accordingly dismissed.

[Justice Bansi Lal Bhat] Acting Chairperson

[Justice Anant Bijay Singh] Member (Judicial)

[V. P. Singh] Member (Technical) am/gc

Company Appeal (AT) (Insolvency) No. 672 of 2020

This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.

Research this judgment with Miss Lucy

Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.

Try Miss Lucy free