Sanjay Kapoor vs Tdi Infrastructure Ltd

TDI Infrastructure Ltd. ...Respondent

Present: For Appellant : Ms. Priyanjali Singh and Mr. Karunesh, Advocates

ORDER

06.02.2019 The appellant, claiming to be an allottee falling within the

purview of 'financial creditor', is aggrieved by the impugned order passed by the

Adjudicating Authority (National Company Law Tribunal), New Delhi Bench on

18th January, 2019. By virtue of that, appellant's application under Section 7

of the Insolvency & Bankruptcy Code, 2016 ('I&B Code', for short) was disposed

of as having rendered infructuous on the ground that 'corporate insolvency

resolution process' had already been initiated against the 'Corporate Debtor' vide

order dated 2nd January, 2019 in 'M/s. Navkar Traders vs. TDI Infrastructure

Ltd.' - ' (IB) No. 1541 (ND) of 2018'. The Adjudicating Authority observed in the

impugned order that the 'Financial Creditor' would be at liberty to state its claim

before the 'IRP'. Learned counsel for the appellant submits that the order of

admission dated 2nd January, 2019 passed in '(IB) No. 1541 (ND) of 2018' has

been set aside by this Appellate Tribunal in terms of order dated 17th January,

2019 passed in 'Company Appeal (AT)(Insolvency No. 45 of 2019'. Perusal of the

aforesaid order passed by this Appellate Tribunal substantiates the argument

advanced by the appellant herein. The order of admission was set aside after 2

holding that no debt was payable in law and consequently no default had

occurred qua the 'operational debt' when the impugned order of admission of

application under Section 9 of the 'I&B Code' was passed by the Adjudicating

Authority. It is submitted that the appellant is left remediless as it cannot file

its claim before the IRP who has ceased to exist.

2. Having heard the learned counsel for the appellant, this Appellate Tribunal

is of the considered view that the impugned order appears to have been passed

oblivious of the fact that this Appellate Tribunal had set aside the order of

admission of application under Section 9 of the 'I&B Code' one day prior to

passing of the impugned order by the Adjudicating Authority. This can be

attributed to lack of knowledge. However, the appellant cannot be made to suffer

and become remediless as the opportunity to file its claim during 'corporate

insolvency resolution process' has been lost on account of the aforesaid

'corporate insolvency resolution process' having been terminated.

3. In the given circumstance, it would be proper to dispose of this appeal by

allowing the appellant to approach the Adjudicating Authority with an

application for revival/restoration of the application and the Adjudicating

Authority would revive/restore the application and pass appropriate orders

thereon in accordance with law. The impugned order is accordingly set aside.

4. The appeal stands disposed of with aforesaid observations.

5. Copy of this order be sent to the Adjudicating Authority, New Delhi Bench.

[ Justice Bansi Lal Bhat ] Member (Judicial) /ns/uk/

Company Appeal (AT) (Insolvency) No. 122 of 2019