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Judgment
Per: Justice Rakesh Kumar Jain:
This order shall dispose of I.A. No. 296 of 2023 filed in CA (AT) (Ins) No. 195 of 2019, by Bharatiya Kamgar Sena (Worker Union) for certain directions to the Liquidator.
In brief, Edelweiss Asset Reconstruction Company Ltd. (Financial Creditor) filed a petition bearing C.P. No. 292/I&B/NCLT/MAH/2017 under Section 7 of the Insolvency and Bankruptcy Code, 2016 (in short ‘Code’) for the initiation of Corporate Insolvency Resolution Process (in short ‘CIRP’) against Bharati Defence and Infrastructure Ltd. (in short ‘BDIL’) (Corporate Debtor) before the Adjudicating Authority (National Company Law Tribunal, Mumbai Bench). The said petition was admitted on 06.06.2017 and Dhinal Shah was appointed as the Interim Resolution Professional (in short ‘IRP’) who was later on appointed as Resolution Professional (in short ‘RP’) by the Committee of Creditors (in short ‘CoC’).
In view of the Expression of Interests (in short ‘EOI’) published on 04.09.2017 and 11.01.2018, five resolution plans were received by the RP. Out of five resolution plans, four resolution plans were not found in compliance with Section 30(2) of the Code and only one resolution plan was put before the CoC which was approved by a requisite majority share of CoC on 03.03.2018.
The resolution plan, approved by the CoC was opposed by the different stakeholders of the Corporate Debtor. The Adjudicating Authority rejected the resolution plan vide its order dated 14.01.2019 and ordered for the liquidation of the Corporate Debtor.
The order dated 14.01.2019 was challenged in appeal i.e. CA (AT) (Ins) No. 195 of 2019 by Superna Dhawan and Vikas Dhawan, shareholders of the BDIL. The said appeal was disposed of on 14.05.2019.
The Liquidator filed I.A. No. 3702 of 2019 in CP (IB) No. 292/MB/2017 for further directions in the liquidation process and the sale of assets of the Corporate Debtor. The said application was allowed by the Adjudicating Authority on 18.12.2020.
The order dated 18.12.2020 was challenged by the present Applicant i.e. Bharatiya Kamgar Sena (Worker Union) by way of CA (AT) (Ins) No. 243 of 2021. Similarly, the same order passed in M.A. No. 3720 of 2019 was challenged in CA (AT) (Ins) No. 140 of 2021 by Prakash Chandra Kapoor & Vijay Kumar, erstwhile directors of the Company and CA (AT) (Ins) No. 165 of 2021 by PGI GMBH Playglobal International. All the three appeals i.e. CA (AT) (Ins) Nos. 140 of 2021, 165 of 2021 & 243 of 2021 were consolidated because these were filed against the common impugned order dated 18.12.2020 and were disposed of with certain directions vide order dated 08.12.2021.
It is pertinent to mention that Civil Appeal No. 1567 of 2022 ‘Prakash Chandra Kapoor & Anr. Vs. Vijay Kumar Iyer & Anr. was filed in the Apex Court against the order dated 08.12.2021 and Civil Appeal No. 1723 of 2022 ‘Bhartiya Kamgar Sena (Workmen Union) of BDIL Vs. Vijay Kumar Iyer (Liquidator) & Anr.’ was also filed in the Apex Court against the order dated 08.12.2021. Both the Civil Appeals were dismissed. The Order passed in Civil Appeal No. 1567 of 2022 read as under:-
“We have heard learned senior counsel for the appellants (the erstwhile directors of the corporate debtor) at sufficient length and have examined the material placed on record as also the contents of the website https://bdil.co.in/home/disclosures-under-liquidation/.
Having examined the matter in its totality, we are satisfied that in its impugned judgment and order dated 08.12.2021, the National Company Law Appellate Tribunal, New Delhi has duly taken into comprehension the substance of the matter; and has been justified in issuing the directions, as contained in paragraph 35 of the impugned order, keeping in view the requirements of Section 35(1)(e) of the Insolvency and Bankruptcy Code, 2016 as also the requirements of the Insolvency and Bankruptcy Board of India (Liquidation Process) Regulations, 2016.
We do not find any question of law worth consideration in this appeal, now at this juncture and at the instance of the appellants. The appeal stands dismissed. All pending applications stand disposed of.”
The order passed in Civil Appeal No. 1723 of 2022 read as under:-
“Having heard learned counsel for the appellant and having perused the material placed on record, we are not persuaded to consider interference in this matter, particularly when it is noticed that the employees are a part of the Stakeholders’ Committee, in terms of Regulation 31A of the Insolvency and Bankruptcy Code of India (Liquidation Process) Regulations, 2016.
This is apart from the fact that we have already dismissed the other appeal against the very same order impugned, as filed by the erstwhile Directors of the Corporate Debtor (Being Civil Appeal No. 1567 of 2022 decided on 28.02.2022).
The appeal is, therefore, dismissed while leaving it open for the appellant in taking recourse to appropriate proceedings in accordance with law.”
Counsel for the Respondent has raised the question of maintainability of the present application, inter alia, on the ground that firstly, the Applicant has not come to this court with clean hands because it has not disclosed all the true facts in the application much less about the dismissal of the appeal by the Hon’ble Apex Court. Secondly, the Applicant is not a party in appeal i.e. CA (AT) (Ins) No. 195 of 2019 and finally the present application has been filed in a decided appeal.
In this regard, Counsel for the Applicant has submitted that the Hon’ble Apex Court, while disposing of their appeal i.e. Civil Appeal No. 1723 of 2022 had left it open to take recourse to appropriate proceedings in accordance with law and therefore, the present application has been filed.
We have heard Counsel for the parties and after examining the record, are of the considered opinion that the present application is not maintainable and is totally mis-conceived because not only the fact that the Applicant has not disclosed all the facts in the present application much less about the dismissal of their appeal by the Hon’ble Apex Court but even if this fact is kept aside for the time being, the Applicant is not a party in the appeal i.e. CA (AT) (Ins) No. 195 of 2019 in which the application has been filed and that the application could not have been filed in a decided appeal which was disposed of way back on 14.05.2019.
Thus, looking from any angle, the present application is not maintainable and being totally mis-conceived is thus hereby dismissed. No costs.