Kamlesh Mehta vs Mirage Ceramics Private Limited Thru ...

Kamlesh Mehta ...Appellant

Versus

Mirage Ceramics Pvt. Ltd. & Ors. ...Respondents

Present: For Appellants : Mr. Shatadru Chakraborty and Ms. Surbhi Anand, Advocates. For Respondents : Ms. Usha Singh, Advocate for R-3.

ORDER

06.10.2023: I.A. No. 4284 of 2023: This is an application praying for

condonation of delay in filing the present appeal. This appeal has been e-filed

on 24.08.2023 against order dated 15.06.2023. Learned counsel for the

Appellant submits that order dated 15.06.2023 allowing I.A. No.1487 of 2023

was not passed on the same date which is clear from the order sheet of the

same date at page 749 of the paper book, which is as follows:

"ORDER

Mr. Nevil M. Chopra Ld. Counsel appearing for the Resolution Professional is present.

IA 1487/2021 This Interlocutory application is allowed. Detailed order will follow.

IA 935/2021, IA 3788/2022 Cont'd.../ 2

List these applications on Board on 27.07.2023"

2. Learned counsel for the Appellant submits that the order sheet also

notice that the detailed order will follow and detailed order on the I.A. was in

fact uploaded on the system on 31.07.2023 and was uploaded on the website

on 02.08.2023 and the Appellant was communicated the order by the

Liquidator on 02.08.2023.

3. Learned counsel for the Respondent submits that Appellant was

prosecuting the proceedings and on the date when order was passed counsel

for the Appellant was present.

4. We have considered submissions of learned counsel for the parties and

perused the record.

5. We are of the view that when order dated 15.06.2023 itself notes that

"Detailed order will follow", it is clear that order was not available on the said

date and the order as submitted by the Appellant was uploaded on

31.07.2023, hence, appeal filed on 24.08.2023 cannot be said to be barred by

time. We, thus, hold that appeal is within time.

6. Heard learned counsel for the Appellant. This Appeal has been filed

against order dated 15.06.2023 by which order the Adjudicating Authority

has allowed the application for liquidation. Appellant before us has submitted

a Resolution Plan which plan was not approved by the CoC by requisite

majority since other member of the CoC opposed the Resolution Plan.

Appellant has only 56.86% vote share in the CoC, hence, plan could not be

Company Appeal (AT) (Insolvency) No.1222 of 2023 3

approved. The order of the Adjudicating Authority clearly indicates that there

was no other Resolution Plan in the CIRP. When the Resolution Plan of the

Appellant has not been approved and there is no other Resolution Plan in the

CIRP, we are of the view that no infirmity can be found in the order of the

Adjudicating Authority directing for liquidation.

7. We observe that the Appellant who was eligible to submit plan is also

eligible to submit its Expression of Interest in the Liquidation Proceeding

when notice is issued for selling the Corporate Debtor as a going concern.

Endeavour shall be made by the Liquidator to sell the Corporate Debtor as

going concern in the Liquidation Proceeding in which Appellant may also be

permitted to submit its plan. With these observations, Appeal is disposed of.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) Archana/nn

Company Appeal (AT) (Insolvency) No.1222 of 2023