Dr Vivek Agarwal vs Kanak Resource Management Ltd & Anr
- CitationCompany Appeal (AT) (Insolvency) No. 672 of 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
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
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