Export-Import Bank Of India vs Resolution Professional Jekpl Private ...

Export-Import Bank of India ... Appellant

Versus

Resolution Professional JEKPL Private Limited ... Respondent

Present: For Appellant : Shri Rajeev Mehra, Senior Advocate with Shri Ashish Rana and Shri Surekh Baxy, Advocates

For Resolution Professional : Dr. U.K. Chaudhary, Senior Advocate with Shri Himanshu Vij, Ms. Manisha Shri Sarvesh Kashyap, Advocate

ORDER

06.11.2017 In the present case, on hearing the counsel for the parties,

we are of the opinion that it is not the stage for deciding the issues raised

in this appeal and leave the question open for decision by the Adjudicating

Authority (National Company Law Tribunal), Allahabad Bench

(hereinafter referred to as 'Adjudicating Authority') for the reasons

mentioned below.

A 'Corporate Insolvency Resolution Process' has been initiated

under Section 10 of the Insolvency and Bankruptcy Code, 2016

(hereinafter referred to as 'I&B Code') against the 'Corporate Debtor'-

JEKPL Private Limited at the instance of the 'Corporate Applicant'. 2

After initiation of the 'Corporate Insolvency Resolution Process', the

Resolution Professional objected the applicant-Export Import Bank of

India ('Exim Bank' for short). While the appellant requested to allow it to

continue as a member in the Committee of Creditors, in view of such

objection, the appellant-Exim Bank preferred Company Appeal (AT)

(Insolvency) No. 188 of 2017, wherein the following order as passed by

this Appellate Tribunal on 18th September, 2017 :

"3. Having heard learned counsel for the

'Corporate Debtor' and Mr. Rajeev Mehra, Senior

Advocate appearing on behalf of the respondent,

while we are of the view that appeal at the instance

of 'Corporate Debtor' is not maintainable, but make

it clear that the Resolution Professional has right to

oppose induction of a third party as a creditor.

However, in view of the fact that the Exim Bank has

been provisionally permitted to continue as a

member of the Committee of Creditors and final

order is yet to be passed by the Adjudicating

Authority, Allahabad Bench and time has been

granted to the contesting party to file rejoinder, we

are not expressing any view at this stage. After

hearing the parties, if the Adjudicating Authority

allows Exim Bank to continue as Member of the

Committee of Creditors, it will be open to the 3

Resolution professional to challenge the final order

before this Appellate Tribunal.

4. It is expected that the Adjudicating Authority

will decide the question of continuity of 'Exim Bank'

as a member of the Committee of Creditors either

way and will not continue with interim arrangement

for days together. An early decision be taken on

production of copy of this order."

After the matter was remitted to the Adjudicating Authority, the

issue was not decided by the Adjudicating Authority in terms with the

order of the Appellate Tribunal and the Adjudicating Authority remitted

the matter to the Resolution Professional and Committee of Creditors to

decide the application of the appellant, which was supposed to be decided

by the Adjudicating Authority. For the said reason, the appellant-Exim

Bank has challenged the order dated 27th October, 2017 whereby the

Resolution Professional and Committee of Creditors have been asked to

take collective decision.

Having heard Shri Rajeev Mehra, learned senior counsel for the

appellant and Dr. U.K. Chaudhary, learned senior counsel appearing on

behalf of the Resolution Professional, we are of the view that the final

decision in terms of the order of this Appellate Tribunal dated 18th

September, 2017 is to be taken by the Adjudicating Authority, which

cannot abdicate its power by asking other authority to decide the 4

question. However, it is always open to the Adjudicating Authority to take

opinion from the Resolution Professional or the Committee of Creditors.

For the reasons aforesaid, while we observe that the report, if any,

filed by the Resolution Professional or the Committee of Creditors is not

binding on the Adjudicating Authority or the appellant or any other

creditor, direct the Adjudicating Authority to decide the question as

ordered by this Appellate Tribunal on 18th September, 2017 about the

continuity of the Exim Bank as a member of the Committee of Creditors,

immediately, preferably within three weeks, uninfluenced by the opinion

if any submitted by the Resolution Professional and the Committee of

Creditors.

We leave all the questions for determination by the Adjudicating

Authority at the first instance and in case of any adverse decision, it will

be open to the aggrieved person to move before this Appellate Tribunal.

The appeal stands disposed of with the aforesaid observations and

directions. However, in the facts and circumstances of the case, there

shall be no order as to costs.

[Justice S.J. Mukhopadhaya] Chairperson

[Justice Bansi Lal Bhat] Member (Judicial) /ng/