Miss Lucy
← All judgments

Sansar Chand Sharma vs Anurag Chandra & Ors

National Company Law Appellate Tribunal24 October 2019

Ratio decidendi

The rule this decision rests on

The Adjudicating Authority, having admitted an application under Section 7 of the Insolvency and Bankruptcy Code, 2016, and having thereby triggered the Corporate Insolvency Resolution Process, cannot re-open the question of admission and set aside its own admission order on an application seeking dismissal of the petition; the proper remedy against such an admission is an appeal to the superior forum. Where a Section 7 petition has been admitted and the Corporate Insolvency Resolution Process initiated, a subsequent application to dismiss the petition is not to be entertained by the Adjudicating Authority, since the admission order cannot be reopened by the same authority. A later Section 7 petition filed by a partner in his individual capacity, after an earlier petition by the firm was rejected, was not shown to be wrongly admitted: the later admission order took note of the earlier rejection, and no ground was found to revisit the admission on merits.

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

Judgment

As delivered

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHICompany Appeal (AT) (Insolvency) No. 608 of 2019IN THE MATTER OF:

Sansar Chand Sharma ...Appellant

Vs.

Anurag Chandra & Ors. .... Respondents

Present:

Appellant: None Respondents: Ms. Manisha Chaudhary, Mr. Mansumyer Singh and Mr. Himanshu Handa, Advocates for R-1.

O R D E R

24.10.2019 :

1. The Appellant - 'Sansar Chand Sharma' Director of suspended Board

of Corporate Debtor- 'Affinity Beauty Salon Private Limited' has filed this

appeal. When this appeal was moved before the Tribunal, on 31.05.2019, in

view of the submissions made, inter alia following was recorded:

"Learned Counsel for the Appellant submits that with regard to

the debt amount M/s. ACPC Enterprises earlier moved before the

Adjudicating Authority by filing an application under Section 7 of

the Insolvency and Bankruptcy Code, 2016 (I&B Code), which

was rejected on 10th November, 2017. Thereafter, the Partner of

M/s. ACPC Enterprises in his individual capacity, i.e., Mr.

Anurag Chandra moved an application under Section 7, which

was admitted on 14th December, 2018. When this was brought

1 Company Appeal (AT) (Insolvency) No. 608 of 2019 to the notice of the Adjudicating Authority, the prayer for recall of

the order of admission was rejected by impugned order dated

2nd May, 2019."

2. Respondent No. 1 has appeared and filed the reply.

3. On 24.09.2019 none was present for the Appellant. Even today

earlier when matter was called none appeared for the Appellant and even

on the second call nobody is present for the Appellant, nor the Appellant is

himself present.

4. Learned Counsel for the Respondent states that the 330 days period

prescribed for completing Corporate Insolvency Resolution Process would

expire on 10.11.2019. He states that in the process the Appellant has also

filed the Resolution Plan as a Resolution Applicant. We have gone through

the impugned order which is at Page 69 (Annexure A1) and reads as

under:-

"Order

CA-816 (PB)/2019

This is an application with a prayer to dismiss

CP No. (IB)-786(PB)/2018. As a matter of fact, the application

was admitted on 14.12.2018 and once the CIRP has been

triggered by admission of the petition on behalf of the financial

creditor under Section 7 then the proper course for the

applicant is to challenge the order before any superior forum.

No such request made in this application can be entertained

once the petition stands admitted.

Accordingly, the application is dismissed."

2

Company Appeal (AT) (Insolvency) No. 608 of 2019

5. By the impugned order, the Adjudicating Authority (National

Company Law Tribunal), Principal Bench, New Delhi declined to entertain

the application to dismiss the application as vide its earlier order dated

14.12.2018 (Annexure A-2) Corporate Insolvency Resolution Process was

initiated after admitting the application. It cannot be said that this

impugned order is in any manner wrong. The adjudicating authority cannot

re-open the question of admission of Section 7 application and set aside its

own admission of the application which was under Section 7 of the

Insolvency and Bankruptcy Code, 2016. We do not find any error in the

impugned order.

6. With regard to the submissions by Appellant as made on 31.05.2019

which have been noted and reproduced above even if we were to look into

the merits of the application which was not entertained by the Adjudicating

Authority, it can be seen that earlier Adjudicating Authority had rejected

the Section 7 application which was filed by M/s ACPC Enterprises

(Annexure 7) as an unregistered partnership firm and amount was claimed

as share subscription amount and Financial Debt. Subsequently, the

partner of the Unregistered Partnership firm 'Anurag Chandra', Financial

Creditor filed Company Petition and the order dated 14.12.2018 was passed

by the Adjudicating Authority admitting the Section 7 application. The

subsequent order admitting Section 7 application took note of the earlier

rejected application of unregistered partnership. As such on merits also

3 Company Appeal (AT) (Insolvency) No. 608 of 2019 there is nothing to have a relook at the order admitting Section 7

application. There is no substance in this appeal.

The appeal is dismissed with the observations as above.

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical)

[V. P. Singh] Member (Technical)

sa/md

4 Company Appeal (AT) (Insolvency) No. 608 of 2019

This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.

Research this judgment with Miss Lucy

Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.

Try Miss Lucy free