AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
22.03.2023: Heard learned Counsel for the Appellant.
This is an appeal filed against an order dated 02.12.2022 by which order Adjudicating Authority (NCLT Kolkata) has admitted Section 7 Application filed by State Bank of India. This is the second round in which the Appellant has come in this appeal. Earlier the Adjudicating Authority passed an order on 18.05.2022 by which the Adjudicating Authority had rejected the Application. It was set aside by this Tribunal in Company Appeal (AT)(Insolvency) No. 1065 of 2022. This Appellate Tribunal, vide its judgment dated 31.10.2022 has set aside the order dated 18.05.2022 passed by the Adjudicating Authority and passed the following order:
“26.Now coming to the submission of Learned Counsel for the Respondent that application under Section 7 was nothing but the recovery mechanism resorted by the bank and cannot be said to be a bonafide application. Suffice it to say that that bank after declaration of account NPA taking steps for recovery of dues by invoking the provisions of SARFAESI Act, 2002 even after decree passed by the Debt Recovery Tribunal steps has been taken.
27.The IBC provides a forum for financial creditor to take steps for initiating insolvency resolution process. It is not the case that all the properties of the Corporate Debtor have been sold in the proceedings before the DRT.
28.The question as to whether there is any possibility to revive the Corporate Debtor is question which needs to be considered in the CIRP process. It is pre-mature to hold that it was not possible to revive the Corporate Debtor, and the application under Section 7 is to be rejected on this ground.
29.We thus are of the view that the submission of Learned Counsel for the Respondent that application was not bonafide cannot be accepted.
30.In view of the foregoing discussion we allow this appeal and set aside the impugned order dated 18.05.2022.
31.We direct the Adjudicating Authority to pass an order of the admission and all consequential orders within the period of one month from the date of copy of the order is produced.
32.We make it clear that the admission of Section 7 application shall not preclude the Corporate Debtor to submit any fresh proposal for OTS.”
Appellant challenged the aforesaid order of this Tribunal dated 31.10.2022 before the Hon’ble Supreme Court in Civil Appeal No. 03/2023 which appeal has been disposed of by Hon’ble Supreme Court by following order dated 02.01.2023:
“ORDER
Permission to file appeal is granted. We do not find any good ground and reason to interfere with the impugned judgment/order and hence, the present appeal dismissed. We, however, clarify that the dismissal of the appeal has no bearing on the order dated 02.12.2022 and right of the appellant to challenge the same before the appellate tribunal in accordance with law. Pending application(s), if any, shall stand disposed of.”
It is to be noted that after the order of this Tribunal dated 31.10.2022, Adjudicating Authority passed an order dated 02.12.2022 admitting Section 7 Application. Aggrieved by the said order dated 02.12.2022, this appeal has been filed by the Appellant.
Learned Counsel for the Appellant submits that since the clarification was granted by the Hon’ble Supreme Court that dismissal of the Appeal against the order 31.10.2022 shall have no bearing on the order dated 02.12.2022 and right of the Appellant to challenge the same in accordance with law.
Learned Counsel for the Appellant submits that in view of the above clarification, this appeal has been filed. It is submitted that the Respondent in fact are proceeding with recovery proceeding since Debt Recovery Tribunal has already issued Sale Notice.
We have considered the submissions of the parties and perused the records. Order dated 02.12.2022 has been passed by the Adjudicating Authority in consequence to the order passed by this Hon’ble Tribunal. Submission which is now pressed by the Appellant that proceeding initiated by Bank under Section 7 are only recovery proceeding, was the argument raised before this Appellate Tribunal which was considered in its judgment dated 31.10.2022 and rejected in paragraphs 26 & 27, as noted above. We are of the view the same submissions cannot be allowed to be made by Appellant to question the admission of Section 7 Application by the Adjudicating Authority. All other contentions were rejected by this Tribunal in its order dated 31.10.2022 which order has also been affirmed by Hon’ble Supreme Court. There is no ground to entertain the appeal. The appeal is dismissed.