Tulip Star Hotels Limited & Anr vs Asset Reconstructuring Company India ...

IN THE MATTER OF: Tulip Star Hotels Ltd. & Anr. ...Applicants/Appellants

Versus

Asset Reconstruction Company (India) Ltd. & Anr. ...Respondents

Present: For Appellant: Mr. Virendra Ganda, Sr. Adv. and Mr. Nidhesh Gupta, Sr. Adv. with Ms. Anju Jain, Mr. Hitesh Sachar, Ms. Vriti G., Advocates For Respondent: Mr. Ramji Srinivasan, Sr. Adv. with Ms. Tine Abraham, Mr. Sidharth Ranade, Ms. Varun Bhanrale, Advocates for R1 Mr. Arun Kathpalia, Sr. Adv. and Mr. Vivek Kohli, Sr. Adv. with Mr. Abhishek Swaroop, Mr. Kauser Hussain, Mr. Juvas Rawal, Ms. Megha Rana, Advocates for RP

ORDER

(20th January, 2023)

Per: Justice Rakesh Kumar Jain:

This order shall dispose of I.A. No. 113-117 of 2023 filed in CA (AT) (Ins)

No. 627 of 2019 with a prayer for revival and relisting of CA (AT) (Ins) No. 627

of 2019 and to adjudicate the same upon the questions of facts and law as

raised therein, except upon the question of limitation and to direct

Respondent No. 2 not to proceed with the CIRP till disposal of present

application.

2. In brief, the Respondent 'Asset Reconstruction Company (India)

Limited' filed an application under Section 7 of the Insolvency and Bankruptcy

Code, 2016 (in short 'Code') as a financial creditor against V Hotels Limited (Corporate Debtor) for resolution of its debt. The Corporate Debtor filed an

application before the Adjudicating Authority in regard to the maintainability

of the application filed under Section 7 of the Code by the Respondent. The

said application was dismissed on 01.05.2019 and the application under

Section 7 of the Code was admitted on 31.05.2019.

3. Two appeals came to be filed before this Tribunal i.e. CA (AT) (Ins) No.

525 of 2019 'V Hotels Ltd. Vs. Asset Reconstruction Company (India) Limited

in respect of the order dated 01.05.2019 and CA (AT) (Ins) No. 627 of 2019

'Tulip Star Hotels Ltd. & Anr. Vs. Asset Reconstruction Company (India) Ltd.

& Anr.' in respect of the order dated 31.05.2019. Both the appeals were taken

up together and were allowed vide order dated 11.12.2019.

4. Two Civil Appeals were filed by the Respondent bearing Civil Appeal

No's. 84-85 of 2020 before the Hon'ble Supreme Court. The said Civil Appeal

were allowed on 01.08.2022 and the order of this Tribunal dated 11.12.2019

was set aside.

5. Two applications bearing I.A. No. 3431-3433 of 2022 in CA (AT) (Ins)

No. 627 of 2019 were filed before this Tribunal in which the following prayers

were made "direct the revival and relisting of CA (AT) (Ins) No. 627 of 2019

and adjudicate the same upon the question of facts and law as raised therein,

except upon the question of limitation and direct the Respondent not to

proceed with the CIRP till disposal of present application"

6. The said applications were argued but ultimately withdrawn by the

Appellants/Applicants with the request to avail any other remedy available.

The order passed on 21.09.2022 is reproduced as under:

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"Counsel for the Appellant, after arguing sometime, prays for withdrawal of these applications with a request to avail any other remedy available to her. Dismissed as withdrawn"

7. Thereafter, the Appellants/Applicants filed two I.As before the Hon'ble

Supreme Court i.e. I.A. 315 of 2023 for condonation of delay in filing and I.A.

No. 196791 of 2023 for clarification/direction in Civil Appeal No. 84-85 of

2020 in the matter of Asset Reconstruction Company (India) Ltd. Vs. Tulip

Star Hotels Ltd. & Ors. In the said application the following order was passed

on 03.01.2023 which is reproduced as under:-

"1. Dr.A.M.Singhvi, learned Senior Counsel for the applicant/respondent No.1 states that though the National Company Law Appellate Tribunal, Principal Bench, New Delhi (for short, `the Tribunal') has dismissed an earlier application as withdrawn on 21.09.2022, the applicant proposes to move a fresh application before the Tribunal for its adjudication on merits. On this premise, he seeks to withdraw these applications seeking clarification of judgment dated 01.08.2022 passed by this Court in C.A.Nos.84-85 of 2020.

2. The applications are, accordingly, dismissed as withdrawn with liberty as aforementioned.

3. However, the contentions of the parties are left open."

8. The Appellants/Applicants has filed the present application on

04.01.2023 i.e. I.A No. 113-117 of 2023 with the same prayers "direct the

revival and relisting of CA (AT) (Ins) No. 627 of 2019 and adjudicate the same

upon the question of facts and law as raised therein, except upon the question

of limitation and direct the Respondent not to proceed with the CIRP till

disposal of present application".

9. We have specifically asked Counsel for the Applicants/Appellants as to

whether the present application is the same which was earlier filed to which

the reply was given in affirmative.

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10. Although Counsel for the Appellants has narrated the facts of this case

but Counsel for the Respondents has raised a preliminary issue about the

maintainability of this application on the ground that exactly similar

application had earlier been filed as I.A. No. 3431-3433 of 2022 which was

argued for sometime and withdrawn with liberty to avail any other remedy

but for the remedy before this Tribunal then how a second application on the

same cause of action is maintainable?

11. In this regard, Counsel for the Appellants/Applicants has submitted

that the present application has been filed in view of the order of the Hon'ble

Supreme Court by which liberty has been granted.

12. In this regard, Counsel for Respondent has pointed out that it is not an

order passed by the Hon'ble Supreme Court granting liberty to the

Appellant/Applicant to file fresh application on the same cause of action

rather it was the Applicant who withdrew its application filed before the

Hon'ble Apex Court as it wanted to file a fresh application before this Tribunal,

therefore, the Hon'ble Apex Court did not relegate them to this Tribunal rather

it was the option of the Applicants.

13. We have heard Counsel for the parties in respect of preliminary issue

raised by the Respondents as to whether a fresh application on the same

cause of action with the similar prayers without there being any change in the

circumstances is maintainable when earlier application was withdrawn by

them without permission.

14. In this regard, we are of the considered opinion that such a procedure

cannot be followed as it is against the judicial propriety and public policy in

as much as it will breed an unending litigation before the Courts of Law. Even

Page 4 of 5 otherwise, liberty was not granted by the Hon'ble Supreme Court to the

Applicants to file the application rather the Applicants themselves proposed

to file a fresh application before this Tribunal and withdrew the application

filed before the Hon'ble Supreme Court.

15. Thus, in view of the aforesaid facts and circumstances, we do not find

any reason to entertain the present application and hence the same is hereby

dismissed. No costs.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Kanthi Narahari] Member (Technical)

[Dr. Alok Srivastava] Member (Technical)

Sheetal/RR

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