State Bank Of India vs Indison Agro Foods Limited

State Bank of India ....Appellant Vs.

Indison Agro Foods Ltd. & Anr. ...Respondents For Appellant: Mr. Ankur Mittal, Ms. Meera Murali, Ms. Aishwarya Pandey, Advocates. For Respondents: Mr. Nipun Singhvi, Ms. Honey Satpal, Advocates for R1. Mr. Rajesh Kr. Gautam, Advocate for R2.

ORDER

(Through Virtual Mode)

15.02.2022: Heard Shri Ankur Mittal, Learned Counsel for the

Appellant, Ms. Honey Satpal, Learned Counsel for the Respondent No.1 and

Shri Rajesh Kr. Gautam, Learned Counsel for Respondent No.2.

2. This Appeal has been filed against the order dated 17.12.2021 passed

by the Adjudicating Authority (National Company Law Tribunal), Indore

Bench at Ahmedabad in I.A No. 204(MP)2021 by which Adjudicating

Authority has noting the fact that the main matter is referred to the third

Bench by the order of the Hon'ble President and further orders are required

from President only pending hearing of the main Application, directed to

maintain status quo. Aggrieved by the said order, State Bank of India has

come up in the Appeal.

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3. Learned Counsel for the Appellant submits that there have been

several orders and proceedings with regard to the main proceeding being TP

123 of 2019 in CP (IB) 137 of 2019. He submits that the order of status quo

has been passed whereas the main petition has not yet been considered and

last order passed by the Single Bench on 03.12.2021 where Learned Single

Bench has again observed that the matter be listed before the appropriate

Bench.

4. Before proceeding further, it is necessary to notice certain orders

which have been passed in this proceeding. On 30.01.2020, while hearing

the Company Petition, an order was passed where one of the Members i.e.

Judicial Member has recused from this case due to personal reasons. The

order was issued by the Member Technical where the fact that Member

Judicial has recused has been noticed and request was made to Registry to

make arrangement that matter be heard. It is useful to extract the last two

paragraphs of the order which is to the following effect:-

"Now, the Hon'ble Member (J) recuses from this case on some personal reasons in IA 19 of 2020 in TP 123 of 2019 [(IA 12 of 2020 in C.P (I.B) 137 of 2019] but the undersigned [Hon'ble Member (T)] is not recusing from the above IA and main petition.

Hence, the Registry may take up the matter with NCLT, New Delhi, for arrangement of another Judicial Member, so that the matter can be heard by the undersigned and other Member (J) for disposal of Comp. App. (AT) (Ins.) No. 131 of 2022 3

this IA 12 OF 2020 and main CP (IB) 137 of 2018 filed under Section 7 of Insolvency & Bankruptcy Code, 2016 on merit without further loss of time."

5. After the aforesaid order, a notification was issued by the Registrar on

11.03.2020 by which the main Company Petition was placed before a Single

Bench.

6. Against the aforesaid order, Company Appeal (AT) (Ins.) No. 726-727 of

2020 was filed by the Corporate Debtor which was disposed off by this

Tribunal on 24.08.2020 where request was made to the Hon'ble President to

constitute a Bench comprising of a Judicial Member and a Technical

Member for disposal of the matter in hand.

7. Subsequent to the aforesaid order dated 24.08.2020, matter was heard

and reserved by the Division Bench on 25.11.2021. Subsequently, on

29.11.2021, another Administrative Order was passed by the Hon'ble

President for placing the matter before Single Bench. On 01.12.2021,

Division Bench noticing the fact that the matter has been referred to Single

Member due to difference of opinion, released the matter and fixed for

further consideration. Thereafter, Single Member of the NCLT considered the

matter. On 03.12.2021, Single Member again made following observations:-

"This is a peculiar situation where the Corporate Debtor has already admitted the claim and only formal order of initiation of CIRP needs to be passed, but for the jurisdiction of which Bench, is the only question to be decided. The parties are directed to Comp. App. (AT) (Ins.) No. 131 of 2022 4

take appropriate steps to obtain the directions with respect to listing/ hearing of the matter before appropriate Bench."

8. The effect of the aforesaid proceeding is that the main Company

Petition has not been finally heard due to the facts noticed in the order of

both Division Bench and Single Member. The order of this Tribunal dated

24.08.2020 is clear that the matter is to be placed before a Bench comprising

of Judicial Member or Technical Member, therefore, the matter ought to have

been placed before a Bench comprising of Judicial Member or Technical

Member for deciding the main Company Petition. The original order dated

30.01.2020 clearly records that the Judicial Member has recused, hence that

order cannot be read any difference of opinion. After refusal there are no two

opinions available to find out any difference of opinion. We, thus, are of the

view that the matter has to be listed before a Bench consisting of Judicial

Member and Technical Member as has already been held by this Tribunal in

its judgment dated 24.08.2020, noticed above.

9. In view of the aforesaid, we are of the view that the Learned President

of the NCLT may take appropriate Administrative decision for listing the

matter before a Bench consisting of Judicial Member and Technical Member.

The copy of this order be placed by the Registrar before the Hon'ble President

for passing appropriate order within a week from today.

10. Learned Counsel for the Appellant has also questioned the order of

status quo passed by the Adjudicating Authority on 17.12.2020, which order

Comp. App. (AT) (Ins.) No. 131 of 2022 5

is impugned in the present Appeal. The Adjudicating Authority in the

impugned order has noticed the aforesaid fact that matter is still awaiting

order of the President, hence, during this status quo has to be maintained.

We see no reason to entertain this Appeal against the said order which is

order of interim nature and is subject to any further order passed by the

Adjudicating Authority. We, thus, dispose of this Appeal with observation

that copy of this order be placed before the President by the Registrar, NCLT

for passing appropriate order for listing the main Company Petition before a

Bench consisting of Judicial Member and Technical Member. It shall always

be open for the Appellant to make request of passing any further order

including the vacation of interim order, if they are so advised.

11. With these observations, the Appeal is disposed of.

[Justice Ashok Bhushan] Chairperson

[Dr. Ashok Kumar Mishra] Member (Technical) Anjali/nn

Comp. App. (AT) (Ins.) No. 131 of 2022