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Judgment
O R D E R
21.03.2022: Heard Mr. Aadil Khan, Advocate for the Appellant and Mr. Kinshul. Chatterjee, Advocate for the Respondent.
This Appeal has been filed against the Order dated 03.03.2022 passed by the Adjudicating Authority (National Company Law Tribunal, New Delhi, Court-VI) in I.A. No/ 6010 OF 2021. By which Order, the Adjudicating Authority has revived the Application CP(IB) No. 315/ND/2021. The Application was filed under Section 9 of Insolvency and Bankruptcy Code, 2016 (hereinafter referred as ‘Code’) by the Operational Creditor against the Corporate Debtor which Application came for consideration before the Adjudicating Authority on 20th December, 2021, the Adjudicating Authority noted that against the same Corporate Debtor, a Corporate Insolvency Resolution Process (CIRP in short) has already been initiated in I.B. 813/ND/2020 in the matter of M/s. Jaycee Castalloys Pvt. Ltd. Vs. M/s. Kiran Udyog Pvt. Ltd. Noticing the aforesaid fact, the Application filed under Section 9 of the Code was closed giving liberty to the Petitioner to file their claims before the Insolvency Professional in the proceedings. Subsequently, an Application was filed by the Operational Creditor praying for modification of the Order dated 20th December, 2021 being I.A. No. 6010 of 2021 wherein following prayers were made by the Operational Creditor:
“a. Allow the present Application;
b. Pass necessary order modifying the Order dated 20.12.2021 in C.P.(IB) No. 315/2021 to the extent that liberty is granted to the Applicant/Operational Creditor to revive the petition bearing C.P. (IB) No. 315/2021 in the event any settlement is reached between the parties in the matter of C.P. (IB) No. 813/2020 or the Order dated 14.12.2021 passed in C.P. (IB) No. 813/2020 initiating corporate insolvency resolution process against Kiran Udyog Private Limited is set aside by the Appellate Authority.
c. Pass any other order as this Hon’ble Tribunal may deem fit and proper in the present facts and circumstances.”
The I.A. No. 6010 of 2021 came for consideration before the Adjudicating Authority, CP(IB) No. 315/2021 which was revived by the Impugned Order.
Learned Counsel for the Appellant challenging the Order contends that the Application of the Operational Creditor was only for modifying the Order dated 20th December, 2021 to the extent that liberty be granted to the Operational Creditor to revive the Petition in the event any Settlement is reached between the parties in CP (IB) No. 813/2020. It is submitted that there was no occasion for reviving the CP(IB) No. 315/2021 where only modification was called for.
Learned Counsel for the Respondent submits that when the Order was passed on 03.03.2022, CP(IB) No. 813/2020 was already closed due to settlement and there was no Insolvency Resolution Process pending against the Corporate Debtor so as to inhabit the Adjudicating Authority not to initiate the CIRP against the Corporate Debtor.
We have considered the submissions of Learned Counsel for the parties and perused the record.
There is no dispute between the parties that the Application under Section 9 filed by the Operational Creditor was closed on 20th December, 2021 on the ground that CIRP of the Corporate Debtor has already been initiated in CP(IB) No. 813/2020. After the aforesaid Order dated 20th December, 2021, the Operational Creditor filed the I.A. No. 6010 of 2021 for modification of the Order but till the time modification came to be considered by the Adjudicating Authority, Adjudicating Authority was aware that CIRP in CP(IB) No. 813/2020 has already been closed hence there was no impediment in reviving the Application. It is true that I.A. 6010/2021 only praying for liberty to revive but on account of actual happening of settlement in CP(IB) No. 813/2020, no error has been committed by the Adjudicating Authority in reviving the CP(IB) No. 315/ND/2021.
We do not find any error in the Impugned Order, the Appeal is dismissed. Learned Counsel for the Appellant is allowed further 10 days’ time to file Reply as was granted by the Adjudicating Authority.