Ashok Sachdev vs Call Express Construction (India) Private Limited

The Appellant in this instant Appeal, being Comp App (AT) (CH) (Ins) No.9/2021, challenges the Impugned Order of 18.01.2021 as it has been passed by the Learned Adjudicating Authority in IBA No.698/2019, whereby the Application which was preferred under Section 7 of the I & B Code, to be read with Section 4 of the I & B Code of 2016, before the Learned Adjudicating Authority was rejected by the Learned Tribunal by the Impugned Order, which is presently under challenge. The consequential effect of the same was that the Application of the Financial Creditor, the Appellant herein, qua the Corporate Debtor for initiation of CIRP Proceedings, on the Application under Section 7 of I & B Code of 2016, was rejected. It has come to the notice of this Tribunal, and as argued by the Learned Counsel for the Parties that there had been parallel proceedings drawn by M/s. India Cements Limited being Company Petition No. CP/IB/17(CHE)/2023 under Section 9 of the I & B Code and the CD was admitted into CIRP vide Order dated 05.07.2023. In this subsequent proceedings, drawn under Section 9 of I & B Code, the Appellant has admittedly raised an Interim and that claim has been rejected by the Interim Resolution Professional (IRP) on 27.07.2023, on the ground that since his earlier application IA No.698/2019, for initiation of Section 7 Proceedings as against the Corporate Debtor has already been rejected by Hon’ble NCLT on the grounds that he cannot be considered as a financial creditor, the instant claim is also rejected on basis of the orders of Hon’ble NCLT alone.

The Counsel for the Appellant, admits that he had filed a claim in the proceedings against the Corporate Debtor with the Interim Resolution Professional (IRP) and that it has been rejected by IRP. He contends that the said order of Interim Resolution Petition (IRP) dated 27.07.2023 rejecting the claim of the Appellant, is because of the embargo created by the earlier order of NCLT dated 18.01.2021which is under challenge and that owing to the order of rejection of IA No.698/2019 that is, the impugned order, the claim as submitted by him in Form C stood rejected.

As far as the order dated 27.07.2023 rejecting the claim of the Appellant in the subsequent proceedings which were held under Section 9, is concerned, that is not the subject matter before this Appellate Tribunal, in the instant Company Appeal. Hence, we are refraining ourselves from making any observations with regards to the reasons which have been assigned for the rejection of the claim as assigned in the order of 27.07.2023.

But having said so it goes without saying that since the application under Section 7 which had been preferred by the Appellant, has been rejected, coupled with the fact that the claim which was subsequently raised by the Appellant has also been rejected on 27.07.2023, for all practical purposes, the instant Company Appeal would be rendered infructuous.

Obviously, in this Company Appeal, the order of rejection of the claim dated 27.07.2023, is not under challenge and it could not be so because the said order of 27.07.2023 being an independent and different proceedings altogether. Hence for all practical purposes owing to the rejection of the claim of the Appellant by an Order of 27.07.2023 it would render the present Appeal preferred against rejection of his Section 7 Application itself to be infructuous and hence the same is accordingly dismissed as having rendered infructuous and consequentially all pending Interlocutory Applications in the Company Appeal would stand closed.

But having dismissed the Appeal as having been rendered infructuous owing to the order of 27.07.2023, i.e., rejecting the claim of the Appellant in a parallel Section 9 proceedings, it will not preclude the Appellant to seek for an appropriate remedy as available to him in accordance with law as against the order of 27.07.2023 rejecting his claim. Subject to the above the Company Appeal is dismissed as having rendered infructuous.