Smt. Kamala Kumar vs Bharath Hi - Tecch Builders Private ...

(APPELLATE JURISDICTION) TA (AT) No.248/2021 (Company Appeal (AT) (Ins) No.900/2020) In the matter of: Smt. Kamala Kumar & Ors., ... Appellants V Bharath Hi-Tech Builders Pvt. Ltd. ...Respondent ss

Present : For Appellant : No Appearance For Respondent : Mr. Sandeep Bajaj, Ms. Aakanksha Nehra, Mr. Guntan Nayyar, Ms. Muskan Sengar, Advocates ORDER

(Hybrid Mode) 06.08.2024:

Upon calling of this Company Appeal, none appears for the Appellants/

Home Buyers. The fact remains that the Appellants have filed this Appeal,

putting a challenge to the Order of 28.02.2020, as it has been passed by the

Learned Adjudicating Authority in CP(IB) No.188/BB/2019, that the Appeal was

admitted and since then it has been pending for a considerably long time. The

order sheet reflects, that on most occasions, the Appellants were not present, as

is the case today.

On the contrary, the Learned Counsel for the Respondent submits that

owing to the certain developments, which she has placed on record by way of a

compilation, as of now nothing survives to be decided and as a matter of fact, the

Appeal itself has been rendered infructuous. The Learned Counsel for the

TA (AT) No.248/2021 (CA (AT) (Ins) No.900/2020) Page 1 of 4 Respondent submits the sequence of subsequent developments chronologically

as under:

(i) As against the decision of the National Company Law Tribunal

dated 28.02.2020 in a similar case involving another set of homebuyers and the

Respondent, the matter was carried to this Tribunal in Comp App (AT) (CH) (Ins)

No.649/2020 which was decided by Judgment dated 30.07.2020.

(ii) Being aggrieved against the said Judgment of 30.07.2020, as

rendered by this Appellate Tribunal, the matter was agitated before the Hon'ble

Apex Court in Civil Appeal No.3325/2020, E.S. Krishnamurthy & Ors., Vs. M/s.

Bharath Hi-Tech Builders Pvt. Ltd.,

(iii) The Hon'ble Apex Court allowed the Appeal and remanded the

matter to the National Company Law Tribunal, to re-decide the issue afresh, with

regards to the proceedings under Section 7 of the Insolvency and Bankruptcy

Code.

(iv) On revival of proceedings in pursuance to the Judgment of the

Hon'ble Apex Court dated 14.12.2021, the National Company Law Tribunal took

up the proceedings and admitted the Section 7 Application of the Applicants by

an Order of 28.02.2023 in CP(IB) No.188/BB/2019.

(v) While the proceedings in CP(IB) No.188/BB/2019 was going on, the

parties to the proceedings entered into an agreement to settle their disputes

amicably and mutually and accordingly filed an Application being IA

TA (AT) No.248/2021 (CA (AT) (Ins) No.900/2020) Page 2 of 4 No.373/2023 under Section 12A to be read with Section 60(5) of the Insolvency

and Bankruptcy Code, to be read with Regulation 30A of the IBBI (Insolvency

Regulation Process for Corporate Persons) Regulations, 2016, before NCLT in

CP(IB) No.188/BB/2019.

(vi) The Learned Adjudicating Authority NCLT passed the following

orders in the said IA No.373/2023:

"7. This application has been filed by the IRP since CoC is not yet constituted, in accordance with Regulation 30A(1)(a). Since the conditions for withdrawal of the CIRP u/s 12A of the Code r/w Regulation 30A(1)(a) of the IBBI (IRP for Corporate Persons) Regulations, 2016 and Rule 11 of the NCLT Rules, 2016 have been satisfied, this Adjudicated Authority has no objection for withdrawal of this Petition. Therefore, the instant Application is hereby allowed.

8. Consequently, the Corporate Debtor is hereby released from the rigours of CIRP and the IRP so appointed, is directed to handover the charge of the Assets and affairs of the Corporate Debtor back to the Suspended Members of the Board of Directors of the Corporate Debtor. Accordingly, IRP is discharged from his duties of the Corporate Debtor, and moratorium imposed shall be ceased to have effect from the date of this order.

9. Accordingly, IA No.373 of 2023 stands disposed of and consequently, C.P. (IB) No.188/BB/2019 stands closed".

TA (AT) No.248/2021 (CA (AT) (Ins) No.900/2020) Page 3 of 4 The Learned Counsel for the Respondent submits that the Impugned Order

in the instant Appeal is same as the one passed by NCLT in the above-mentioned

case and therefore most likely the Appellants would have arrived at an amicable

settlement with the respondent which explains their apparent lack of interest to

prosecute the case therefore, owing to the aforesaid fact, in fact, nothing survives

to be argued on merits in the instant Company Appeal and for all practical

purposes, the same has been rendered infructuous. But we are hesitant to dismiss

the Appeal as having been rendered infructuous, in the absence of the Learned

Counsel for the Appellant. Instead, while the memorandum as submitted by the

Learned Counsel for the Respondent is taken on record, the Appeal is dismissed

for want of prosecution.

[Justice Sharad Kumar Sharma] Member (Judicial)

[Jatindranath Swain] Member (Technical) VG/TM

TA (AT) No.248/2021 (CA (AT) (Ins) No.900/2020) Page 4 of 4