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Judgment
PER: JUSTICE RAKESH KUMAR JAIN (ORAL)
08.08.2024: This appeal is directed against the order dated 04.09.2023 by which an application bearing I.A. No. 944 of 2021 filed in Company Petition No. (IB) 2815/MB/2019 by the present appellant has been disposed of, however, with liberty to the appellant to lodge their claim before the Liquidator as and when the Liquidation order is passed.
Shorn of unnecessary details, case of the appellant is that it was registered as a Secured Financial Creditor of the Corporate Debtor, but the Resolution Professional has admitted it to be the Financial Creditor.
Aggrieved against the same, I.A. No. 944 of 2021 was filed before the Tribunal and on the same day application bearing I.A. No. 1282 of 2021 was also filed by the RP for the initiation of liquidation.
In view of thereof, the Tribunal has made the following observations:
“2) The present Interlocutory Application has been filed by the Jammu & Kashmir Bank Limited, who is one of the Financial Creditors of the Corporate Debtor against the decision of the Resolution Professional classifying it as unsecured Financial Creditor holding that the charge hold by the said Financial Creditor is not registered with Registrar of Companies.
3) Now, the Committee of Creditors has also moved Interlocutory Application seeking Liquidation of the Corporate Debtor, which is pending for adjudication before the Bench.
4) Hence, this Bench feels that the present Interlocutory Application becomes meaningless at this stage, thus, disposed of.
5) However, liberty is granted to the Applicant herein to lodge their claim before the Liquidator, as and when the Liquidation Order is passed. No costs.”
At the time of preliminary hearing in this appeal on 31.10.2023, the following order was passed, which read as under:
“31.10.2023: Learned Senior Counsel for the Appellant submits that IA No. 944 of 2021 which was filed by the Appellant against the decision of the Resolution Professional classifying it as unsecured financial creditor has been rejected not on the merit but on the ground that liquidation application has been filed. Submission needs scrutiny.
Let ‘Notice’ be issued to the Respondent through ‘Speed Post’. Let the requisites together with process fee be filed within three days from today. The Appellant is required to provide the e-mail address of the Respondent and in that mode also, the service can be effected. The Appellant is also required to furnish the Mobile No. of the Respondent to the ‘Office of the Registry’.
Let Reply be filed within three weeks. Rejoinder, if any, may be filed within two weeks thereafter.
List the Appeal on 11.12.2023.
In the meantime, it shall be open for the Appellant to file a fresh application for interim relief.”
It is pertinent to mention that before this appeal could have been filed the Liquidator was appointed on 04.10.2023.
Counsel for the respondent has thus submitted that the appellant has already filed the claim in Form-B on 01.11.2023 which has been rejected by the Liquidator on 04.12.2023, therefore, the only remedy available to the appellant is to challenge that order in accordance with law.
It is submitted that the appellant has already challenged the decision/communication of the liquidator dated 04.12.2023 by way of I.A. No. 6010 of 2023 filed before the Tribunal, inter alia, for setting aside the order dated 04.12.2023. The prayer is that “Quash/Stay the decision/communication of Liquidator (erstwhile RP) dated 04.12.2023 declaring the Appellant Bank as the unsecured financial creditor till the pendency of the Appeal.”
We have heard both the counsels for the parties and after perusal of record, are of the considered opinion that in so far as the present appeal is concerned, it has become infructuous because the appellant has already availed the remedy to challenge the decision of the liquidator dated 04.12.2023 by way of an independent application bearing I.A. No. 6010 of 2023 which is pending before this Court.
In view of the aforesaid facts and circumstances, the present appeal has become infructuous.
Since, this appeal has become infructuous, therefore, the application bearing I.A. No. 6010 of 2023 would also meet the same fate but the fact that the issue still survives, therefore, liberty is granted to the appellant to file appropriate application before the Tribunal in this regard which shall be decided by the Tribunal as early as possible.
It is made clear that in case any such application/ appeal is filed before the Ld. Tribunal, all the issues involved in the application as well as defence thereto shall remain open.
Mr. Abhijeet Sinha has further requested that on 18.12.2023 an order was recorded by this Court to the effect that “Learned Counsel for the liquidator submits that auction notice was issued but no bid was received and no further auction notice has yet been issued”. The said statement recorded on 18.12.2023 may be continued.
Be that as it may, keeping in view the facts and circumstances and as agreed by the counsel for the respondent, this arrangement shall continue for a period of one week from today enabling the appellant to file the application. However, it is made clear that if the application is filed after one week then this arrangement shall cease to have effect.