Vyomesh Mahipatray Shah vs Mr. Birendra Kumar Agrawal & Anr
- CitationCompany Appeal (AT) (Insolvency) No. 625 of 2024
Ratio decidendi
The rule this decision rests on
The Tribunal dismissed the appeal against the appointment of a Resolution Professional on the reasoning that, under the Supreme Court's decision in Dilip B. Jiwrajka, all adjudicatory issues arising in a personal guarantor insolvency are to be considered at the hearing of the application under Section 100, so that the appellant, as personal guarantor, retains the liberty to raise those issues then and it is unnecessary to examine them in an appeal against the order appointing the Resolution Professional.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Vyomesh Mahipatray Shah ...Appellant Versus Birendra Kumar Agarwal & Anr. ...Respondents
Present: For Appellant : Mr. Aayush Agarwala, Advocate.
For Respondents : Mr. Ayush J. Rajani, Advocate for R-2.
ORDER
(Hybrid Mode)
21.10.2024 : Heard Counsel for the Appellant.
2. This Appeal has been filed against an Order dated 22.02.2024 passed
by the Learned Adjudicating Authority (National Company Law Tribunal,
Mumbai Bench, Court-II) in an Application under Section 95 filed by the
Financial Creditor, JC Flower Asset Reconstruction Private Ltd., in which
Application, the Resolution Professional (RP) has been appointed.
3. Adjudicating Authority in the Impugned Order has referred to the Order
of the Hon'ble Supreme Court in the matter of `Dilip B Jiwrajka' Vs. `Union
of India & Ors.' reported in 2023 SCC OnLine SC 1530.
4. An Application has also been filed in May 2024 by the Appellant i.e.,
I.A. 6859/2024 stating that JC Flowers Asset Reconstruction Pvt. Ltd. have
assigned their debt to Omkara Asset Reconstruction Company Pvt. Ltd.
5. The Order Sheet of the Appeal indicates that Appellant has taken at
least 6 adjournments in the Appeal and it was also recorded on 13.08.2024
that Parties are negotiating for settlement and consent term has yet to be
finalised.
6. The Order impugned is only an Order appointing the RP.
7. The Judgment of the Hon'ble Supreme Court in `Dilip B. Jiwrajka'
(Supra), categorically lays down that all adjudicatory issues have to be
considered at the time of hearing of the Application under Section 100.
8. Appellant, the Personal Guarantor shall have liberty to raise all issues
at the time of hearing of Section 100 hence it is not necessary to enter into
any issues sought to be raised in the present Appeal.
9. We thus do not find any ground to entertain the Appeal against the
Order dated 22.02.2024.
Appeal is dismissed subject to liberty as above.
We make it clear that we have not expressed any opinion on the merits
of the Appeal.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical)
[Arun Baroka] Member (Technical) himanshu/nn
Comp. App. (AT) (Ins.) No. 625 of 2024 2 of 2
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