Gp Capt Atul Jain vs Tripathi Hospital Pvt Ltd

IN THE MATTER OF: Gp. Capt. Atul Jain ...Appellant

Versus

Tripathi Hospital Pvt. Ltd. ...Respondent

Present: For Appellant : Gp. Capt. Atul Jain in person

For Respondent : Mr. A.K. Singh, Sr. Advocate with Mr. Adarsh Tripathi and Mr. Vikram Singh, Advocates Mr. Gagan Kr. Sharma, Ms. Meghna Butolia and Mr. Ajitesh Garg, Advocates

ORDER

20.10.2022 I.A. No. 3714 of 2022

This application is filed to implead M/s Heritage Hospitals Limited R/o

B-27/5, Ramesh Nagar, Near Raja Garden, New Delhi - 110015 as

Respondent No.9 in the present Appeal. Reply to the Application has been

filed.

2. Counsel appearing on behalf the applicant has submitted that the

applicant has purchased the mortgaged property of Tripathi Hospital Pvt. Ltd.

at NH 1A, Sector 119, Noida, Gautam Budh Nagar, Uttar Pradesh - 201306

from the Union Bank of India in an online auction on 17.06.2022 and a Sale

Certificate (Annexure A2) dated 15.09.2022 has been issued by the Union

Bank of India after receiving the total sale consideration of Rs. 28.10 crores.

Company Appeal (AT) (Ins.) No. 655 of 2020 & I.A. No. 3714 of 2022 1 of 4

3. It is further submitted that an application under Section 7 of the

Insolvency and Bankruptcy Code, 2016 (in short 'Code') has been filed by

Group Captain Atul Jain (Appellant). Which has been dismissed by the

National Company Law Tribunal, Allahabad Bench vide its order dated

25.06.2020. The Appellant filed an application bearing I.A. No. 955 of 2020

for stay of sale of immovable property of Tripathi Hospital which was disposed

of vide order dated 20.09.2022 with a direction that "status quo be maintained

on the subject property in the instant matter till the next date of hearing".

4. It is submitted that the present application has been filed because

Respondent No. 1 in the main appeal has no more interest in the property

which has been purchased by the applicant and in case the applicant is not

allowed to be impleaded as a party in these proceedings and any adverse order

is passed against Respondent No.1 then it will directly effect the interest of

the applicant as well because in that situation the application filed under

Section 7 by the Non-applicant/Appellant, if admitted then the CIRP

proceedings will be initiated presumably against the property in question of

the Corporate Debtor which is now owned by the present applicant. It is

submitted that the applicant is thus a necessary party.

5. On the other hand, the non-applicant / Appellant has vehemently

argued that the applicant is not a necessary party because the dispute can be

decided even in their absence. He has relied upon certain orders of this

Tribunal in the matter of Axis Bank Ltd. Vs. Lotus Three Developments Ltd.

& Ors. dated 31.07.2018, Union Bank of India vs. Oriental Bank of Commerce

dated 20.05.2020 and Vekas Kumar Garg Vs. DMI Finance Pvt. Ltd. & Anr. Company Appeal (AT) (Ins.) No. 655 of 2020 & I.A. No. 3714 of 2022 2 of 4 dated 18.02.2021 to contend that the impleadment of a party cannot be

ordered as a routine, until and unless the said party is necessary to be present

in the lis.

6. We have heard counsel for the parties and perused the record.

7. The issue involved in this case as to whether the applicant, after

lawfully purchasing the property of the Corporate Debtor, sold by the

mortgagee bank in an open auction, is entitled to be impleaded as a party to

the proceedings, which are initiated in terms of Section 7 of the Code?

8. It is needless to mention that the principle of impleadment of parties is

drawn from Order 1 Rule 10 of the CPC which provides that the Court may

add or delete any party at any stage and has to see as to whether the said

party is necessary or proper for the purpose of proper disposal of the litigation.

9. Since the only property of the Corporate Debtor mortgaged with Union

Bank of India is purchased by the applicant in open auction in SARFAESI

proceeding after paying a huge consideration of Rs.28.10 crores, the applicant

in our considered opinion is a necessary party in the present litigation

because in case of its absence, if any order is passed, while allowing this

appeal, the interest of the applicant is going to be adversely affected.

10. In view of the aforesaid facts and circumstances, the present

application is allowed and the applicant is impleaded as respondent No.9. The

Registry is directed to carry out the necessary corrections in the Memo of

Parties.

Company Appeal (AT) (Ins.) No. 655 of 2020 & I.A. No. 3714 of 2022 3 of 4 Company Appeal (AT) (Insolvency) No. 655 of 2020

11. Since we have allowed the application bearing I.A. No. 3714 of 2022,

filed by a separate order of today therefore, the Appellant herein is directed to

provide a complete set of Memorandum of Appeal to Mr. Adarsh Tripathi,

Advocate within a period of three days.

List again on 02nd November, 2022.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Kanthi Narahari] Member (Technical) pks/rr

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