Kunal Structure (India) Private ... vs M K Aircon Systems Private Limited
- CitationCompany Appeal (AT) (Insolvency) No. 1632 of 2024
Ratio decidendi
The rule this decision rests on
Where separate applications under Section 9 of the Insolvency and Bankruptcy Code are filed by different operational creditors and a financial creditor against a common corporate debtor, each application arises from a separate and individual cause of action, and the Adjudicating Authority does not err in refusing to transfer one such application to another bench merely because the same corporate debtor is common to them. A common defence raised by the corporate debtor across such applications is not a ground for transfer of a particular application; it is a submission to be pressed before the Adjudicating Authority when the application is considered on merits.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
In the matter of: Kunal Structure (India) Pvt. Ltd. ....Appellant Vs. M/s. M.K. Aircon Systems Pvt. Ltd. ...Respondent For Appellant Present but not marked appearance. For Respondent Mr. Aditya Gauri, Mr. Amar Vivek, Ms. Dammini Svestha, Mr. Anant Jain, Advocates
ORDER
(Hybrid Mode)
06.09.2024: Heard Counsel for the Appellant.
2. This Appeal has been filed against the order dated 12.07.2024 passed
by the Adjudicating Authority (National Company Law Tribunal) New Delhi,
Principal Bench by which order transfer application filed by the Appellant to
transfer since CP (IB) No. 121 of 2022 filed under Section 9 from Court-1 to
Court-2 of NCLT Ahmedabad has been rejected. The Principal Bench while
rejecting the transfer application has made following observations in
paragraphs 2 and 3, which reads as follows:-
"2. Present transfer application is filed seeking transfer of C.P. (I.B.) No.- 121/2022 filed under Section 9 petition pending before Court-1, NCLT, Ahmedabad. Apparently, each case has a separate and individual cause of action as against the common Corporate Debtor. If any matter is admitted, the rest will have to follow.
2 3. In any event, there is not much difficulty for the parties because it is before the same Bench of Ahmedabad wherein two cases are before Court-II and one case is before Court-I. If any one of the case is decided earlier, other case will be resolved as per law thereafter."
3. Counsel for the Appellant submits that the Corporate Debtor has
common defense in the applications and there is multiplicity of proceeding
unless the application under Section 9 has not transferred. It is submitted
that in the High Court also, Civil Application is pending with regard to an
arbitration award and the sufficient amount is to be recovered from arbitration
award.
4. We have considered the submissions of the Appellant and perused the
record.
5. The Principal Bench, as noted above, has observed that each case has
a separate and individual cause of action as against the common Corporate
Debtor. If any matter is admitted, the rest will have to follow. When the
applications are filed by different Operational Creditors and one Financial
Creditor, we see no error in the order of the Adjudicating Authority rejecting
application for transfer of CP (IB) No. 121 of 2022.
6. As far as submission that there is a common defense, it is always open
for the Appellant to press this submission before the Adjudicating Authority
when the application comes for consideration on merits. We do not find any
Company Appeal (AT) (Insolvency) No. 1632 of 2024 3
error in the order of the Principal Bench. We make it clear that we have not
expressed any opinion on the merits of any of the application.
7. The Appeal is dismissed.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical)
Anjali/nn
Company Appeal (AT) (Insolvency) No. 1632 of 2024
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