In the matter of Ornate Spaces Private Limited

National Company Law Tribunal6 October 2023

CitationIN IA-2374-2021 & IA-3168-2023 in C.P.(IB)-4469(MB)-2019

Ratio decidendi

The rule this decision rests on

The Tribunal holds that it has no power to review its own order unless directed to do so by a superior authority, and that it may recall only orders passed ex parte or rectify mistakes apparent in an order; an application seeking recall of an order that falls within neither category cannot be allowed. The Tribunal holds that an order of the Tribunal which has been challenged before the Appellate Authority, and which has not been set aside, continues to hold good, and that the Tribunal's order therefore merges with the Appellate Authority's subsequent order for the purposes of the recall application. The Tribunal holds that where the Tribunal has, on remand from the Appellate Authority, reconsidered a contention and found that the Committee of Creditors' acts were not illegal and were within the legal parameters of the Code, no ground for liquidation under the relevant provision is made out, and a prayer for liquidation on that basis cannot be allowed.

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

Judgment

As delivered

IN THE NATIONAL COMPANY LAW TRIBUNALMUMBAI BENCH : COURT-IVIA-3168/2023 IN IA-2374/2021 INC.P.(IB)-4469(MB)/2019Under Section 60(5)(c) of the Insolvency andBankruptcy Code, 2016.Application moved by:UTI Employees Sai Samruddhi Co-operativeHousing Society … ApplicantVs.Jayesh Sangharajaka, RP…Resp.1CoC, Ornate Spaces Pvt. Ltd. & Ors....Resp.2In the matter ofIDBI Trusteeship Services Limited...Financial CreditorVs.Ornate Spaces Private Limited...Corporate DebtorOrder Pronounced on : 06.10.2023Coram:Mr. Prabhat Kumar Mr. Kishore VemulapalliHon’ble Member (Technical) Hon’ble Member (Judicial)Appearances:For the Applicant(s) : Mr. Partho Sarkar a/w Mr. Pratik Sarkarand Mr. Raunak i/b Vidhi Legal, Adv.For the Respondent(s) : Mr. Vikram Nankani, Sr. Counsel a/wMUMBAI BENCH : C-IV3168/2023 IN IA-2374/2021IN C.P.(IB)-4469/(MB)/2019Mr. Nausher Kohli, Mr. Ashish Parwani,Mr. Devesh, Mr. Dikshat Mehra, Mr.Chintan Gandhi, Ms. Anjali Dhoot i/bRajani Associates, Adv.

O R D E R

Per: Kishore Vemulapalli, Member (Judicial) 1. This is an Application IA-3168/2023 filed on 19.07.2023 under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the ‘the Code’) by the UTI Employees Sai Samruddhi Co-operative Housing Society challenging the Application filed by the Resolution Professional (Respondent No.1) seeking approval of the Resolution Plan which is approved by 80.86% of the voting share of the members of the Committee of Creditors (hereinafter referred to as ‘CoC’ or “Respondent No. 2”) of the Debtor Company viz. Ornate Spaces Private Limited (hereinafter referred to as ‘Corporate Debtor’). 2. The Applicant has filed this Application seeking the rejection of Resolution Plan approved by CoC pending for approval before this Bench in IA- 2374/2021; the supply of copy of IA-2390/2021 filed by Respondent No.1 seeking continuation of CIRP proceedings till 31.08.2021; recall of the order passed by this bench in IA-2421/2021; and consequential liquidation order u/s 33 of the IBC.

MUMBAI BENCH : C-IV 3168/2023 IN IA-2374/2021 IN C.P.(IB)-4469/(MB)/2019 3. This bench has already dealt with the contention, pertaining to rejection of the plan in detail, particularly the approval of the plan by CoC which as per applicant had become functus officio, in its order of even date in IA.No.2576/2023. Accordingly, this prayer is not being separately dealt with. 4. As regards supply of copy of IA-2390/2021 is concerned this bench finds that this application dealt with the limited aspect of exclusion and extension of time till 31.08.2021 for consideration of plan in hand. It is not a disputed fact that during the extended period, the plan was considered and came to be approved on 09.09.2021. Since, IA-2390/2021 was disposed of and in place thereof a comprehensive application in IA-2421/2021 was filed by the RP, a copy of IA- 2421/2021 was supplied by the Resolution Professional to the Applicant. Accordingly, this prayer was also dealt with during the course of arguments. 5. As regards prayer for liquidation order u/s 33 of the IBC, this prayer cannot be allowed in this application as this bench had already passed an order dated 17.03.2023 in IA-2421/2021 excluding the COVID-19 period and extending the CIRP period till 12.10.2021. Since, that order has not been set aside by Hon’ble NCLAT even though the same was in appeal before it, this bench finds that the order still holds good. Further, bench has again arrived at a conclusion that the meetings of the CoC approving the plan and CoC’s acts therein had no infirmity vide our order of even date passed in IA-2576/2023, which was filed pursuant to the order passed by Hon’ble NCLAT in the appeal against order in IA-2421/2021 allowing an opportunity to the applicant to file

MUMBAI BENCH : C-IV 3168/2023 IN IA-2374/2021 IN C.P.(IB)-4469/(MB)/2019 the objections afresh and directing us to consider the same. Since, we have again reappreciated the contention in relation to CoC having become functus officio and concluded that the CoC’s act were not illegal and were within the legal parameters of the Code, we do not find any merit in the ground seeking liquidation. 6. As regards the prayer for the recall order passed in I.A 2421 of 2021, this bench finds that our order in IA-2421/2021 was challenged before Hon’ble NCLAT and the order passed by this bench merges with the order dated 04.07.2023. Further, this bench does not have a power to review it own order unless directed by the superior authority. We are of the considered view that this bench can only recall order which are passed ex-parte or it can rectify the mistakes in the order. The present case does not fall under either of two scenario. Accordingly, this prayer cannot be allowed. 7. In view of the aforesaid discussion and finding, this IA-3168/2023 is deserves to be dismissed.

Sd/- Sd/- PRABHAT KUMAR KISHORE VEMULAPALLI Member (Technical) Member (Judicial) 06.10.2023/-

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