Srs Private Investments Powai Limited vs Supreme Housing & Hospitality Private ...

21.04.2023:Heard Ms Shyel Trehan, learned counsel for the appellant. In

the present appeal on the basis of advance notice Mr. Abhirup Dasgupta,

learned counsel has appeared on behalf of Respondent NO.2 to 5 and intends

to file Vakalatnama. He is permitted to file Vakalatnama in the course of day.

2. The present appeal has been preferred under Section 421 of the

Companies Act, 2013 against an order dated 10.01.2023 passed in MA

834/2018 in CP 1999/2018 by the National Company Law Tribunal, Mumbai

Bench, Court III (hereinafter referred to as NCLT). By the said order the

application filed by the appellant under Section 241, 242 and 244 of the

ompanies Act, 2013 was directed to be disposed off noticing therein that CIRP

admission order 23.08.2021 has already been passed in respect of company

in question i.e. Respondent No.1.

3. It was submitted by learned counsel for the appellant that the Learned

NCLT has committed error in recording in its order dated 10.01.2023 that the

CIRP order dated 23.8.2021 had already been passed against the company.

She has drawn our attention to order dated 31.01.2022 passed by the Learned

NCLT in CP(IB) 4417 of 2018. By the said order dated 31.1.2022 the CIRP 2

admission order i.e. order dated 23.08.2021 which has been incorporated in

the present impugned order was withdrawn. The order dated 31.01.2022

which is at running page 601 Volume III of the Memo of Appeal is reproduced

hereinbelow:

"Counsel for the Petitioner, Ms Parisha Shah, counsel for the Resolution

Professional, Mr Nithish Bangera and counsel for the Respondent Ms

Madhavi Nalluri are present through virtual hearing.

IA 2709/20221

Mr Nithish Bangera on instructions from the RP reported that RP has no

objection for allowing the above Application. He also confirmed that no

amount is due and payable to IRP either towards his fee or expenses.

The objection of IRP is that the Form FA is defective which is a trivial

issue.

After hearing the submissions made by the RP and upon perusing the

material available on record, this Bench feels that the above IA deserves

to be allowed and accordingly, the same is allowed and the CIRP

admission order dated 23.08.2021 passed by this Bench against

the Corporate Debtor is withdrawn by releasing the Corporate Debtor

from all rigours of moratorium."

4. Mr Abhirup Dasgupta, Learned counsel for the Respondent who was

permitted to file Vakalatnama, has not disputed the fact that there is factual

error in the impugned order in respect of date of moratorium. However, he

submits that in another proceeding CIRP has been initiated and moratorium 3

order has been passed. Considering the submission made by the learned

counsel for the appellant as well as admission of the learned counsel for

Respondent that there is factual error in respect of recording of the date of

admission dated 23.08.2021 in the impugned order dated 10.01.2023, we are

of opinion that there is no reason to allow the impugned order to continue.

Accordingly, the order dated 10.01.2023 is set aside and considering the

submission made by the learned counsel for the Respondent that on another

application CIRP in respect of Company/Corporate Debtor is continuing it is

required to remit back the matter to NCLT for examining and for passing

appropriate order expeditiously.

5. Learned counsel for the Respondent submits that subsequently

moratorium order has been passed on 23.11.2022 in CP(IB) No.1397/MB-

IV/2020.

6. Learned counsel for both the parties are required to request Learned

NCLT to pass appropriate order afresh expeditiously.

7. With the above observation the appeal stands disposed off.

(Justice Rakesh Kumar) Member (Judicial)

(Dr. Alok Srivastava) Member (Technical) Bm/gc