Sunil Kumar Agarwal vs Respondent

Sunil Kumar Agarwal Liquidator of Varia Engineering ...Appellant Works Pvt. Ltd.

Versus

--- ...Respondent

Present: For Appellant: Mr. Abhijeet Sinha, Sr. Adv. with Honey Satpal, Adv.

ORDER

(Hybrid Mode) Per: Justice Rakesh Kumar Jain; (Oral)

16.12.2024: This appeal is directed against the order dated 08.11.2024

by which I.A. No. 1679 of 2024 filed by the Liquidator has been disposed of

by imposing a cost of Rs. 10 Lac which has been ordered to be deposited in

the Prime Minister relief fund.

2. CP (IB) No. 149 of 2017 was filed under Section 7 of the Code, by Bank

of Baroda against Varia Engineering Pvt. Ltd. (CD) which was admitted on

21.12.2017.

3. I.A. No. 362 of 2018 was filed for liquidation which was allowed on

22.07.2019 and liquidator was appointed on 07.08.2019.

4. I.A No. 665 of 2021 was filed on 17.09.2021 under Section 54 of the

Code, 2016 for the dissolution of the Corporate Debtor on the ground that

assets of the CD have already been sold and the amount has been realised

and distributed.

5. The Appellant filed the application bearing I.A No. 1679 of 2024 to

condone the delay of 283 days in filing the application from 09.01.2024 to

18.10.2024 being the duration of period from the date of withdrawal of

dissolution application and for the grant of extension of the period of

liquidation from 10.01.2024 to 31.03.2025.

6. In the said application, it has been recorded by the Tribunal that

Counsel for the appellant has agreed to pay the cost for the lapse on its part.

On this premise, the Tribunal while condoning the delay, imposed the cost of

Rs. 10 lac.

7. Since, it is an order which has been suffered on the statement of the

Counsel for the Appellant/Liquidator, therefore, at the very outset, we have

asked the Counsel for the Appellant as to how the appeal against the consent

order is maintainable. In this regard, he has drawn our attention to one of the

ground taken in the appeal that "the Learned Adjudicating Authority has

erred in recording in the impugned order about the consent of the Ld. Counsel

of the Appellant for making payment of the cost". It is submitted that no such

consent was given. In this regard, he has submitted that he would rather file

an application before the same bench for recalling of this part of the order in

view of the decision of the Hon'ble Supreme Court in the case of State of

Maharashtra vs. Ramdas Shrinivas Nayak & Anr. (1982) 2 SCC 463 in which

the Hon'ble Supreme Court has observed that "Statements of fact as to what

transpired at the hearing, recorded in the judgment of the court, are

conclusive of the facts so stated and no one can contradict such statements

by affidavit or other evidence. If a party thinks that the happenings in court

have been wrongly recorded in a judgment, it is incumbent upon the party,

while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement

made with regard to his conduct was a statement that had been made in error.

That is the only way to have the record corrected. If no such step is taken, the

matter must necessarily end there."

8. In view of the aforesaid facts and circumstances, the present appeal is

hereby disposed of, relegating the Appellant to avail its remedy of recall of the

order on the alleged premise that the Appellant had never accepted its lapse

nor consented to pay the cost as recorded.

9. Needless to mention that if, any such application is filed by the

Appellant before the Tribunal, the Tribunal shall pass a speaking order.

However, it is made clear that we have not touched the merit of the case and

no observation has been made as such.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical)

Sheetal/Ravi