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Judgment
Venugopal M(J)
The ‘Appellant’ has preferred the instant Company Appeal (AT) (CH) (INS) No.186 of 2021, being dissatisfied with the order dated 07.07.2021 passed in CP/IB/29/CHE/2021 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench, Court-1, Chennai).
Earlier, the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench, Court-1, Chennai) had passed the ‘Impugned Order’ dated 07.07.2021 in CP/IB/29/CHE/2021, which runs as under:
“Applicant Mr. M. Gagan Bothra is present in person. Respondent is represented by Mr. Chandrasekaran, Advocate. Both are present through video conferencing platform.
At request of Learned Counsel for Respondent list this matter on 11.08.2021 for hearing.”
According to the ‘Appellant’ he preferred the instant Company Appeal (AT) (INS) No.186 of 2021 before this ‘Tribunal’ on the ground that the ‘Adjudicating Authority’ had failed to refer the matter to the Board to appoint a ‘Resolution professional’ as contemplated under Section 97(3) of Part III of the I & B Code.
Advancing his argument, the ‘Appellant’ contends that the ‘Impugned Order’ dated 07.07.2021 of the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench, Court-1, Chennai) in CP/IB/29/CHE/2021 adjourning the matter to 11.08.2021 is an incorrect one and further that it is the duty of the ‘Resolution Professional’ to scrutinize and examine the Company Petition and submit a report to the ‘Adjudicating Authority’, as per the scheme of Part-III of the I & B Code.
The main grievance of the ‘Appellant’ is that the Respondent was directed to file Counter of the ‘Adjudicating Authority’ had listed the main case on 11.08.2021 for Hearing. As such, he has preferred the instant Company Appeal before this ‘Tribunal’.
At this juncture, this ‘Tribunal’ makes a useful reference to the ingredients of Section 61 of the I & B Code under the caption ‘Appeals and Appellate Authority’ which runs as follows:
61.(1) “Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority under this part may prefer an appeal to the National Company Law Appellate Tribunal:
(2)Every appeal under sub-section (1) shall be filed within thirty days before the National Company Law Appellate Tribunal:
Provided that the National Company Law Appellate Tribunal may allow an appeal to eb filed after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing the appeal but such period shall not exceed fifteen days.
(3)An Appeal against an order approving a resolution plan under section 31 may be filed on the following grounds, namely: -
(i)the approved resolution plan is in contravention of the provisions of any law for the time being in force;
(ii)there has been material irregularity in exercise of the powers by the resolution professional during the corporate insolvency resolution period;
(iii)the debts owed to operational creditors of the corporate debtor have not been provided for in the resolution plan in the manner specified by the Board;
(iv)the insolvency resolution process costs have not been provided for repayment in priority to all other debts; or
(v)the resolution plan does not comply with any other criteria specified by the Board.
(4)An appeal against a liquidation order passed under section 33 may be filed on grounds of material irregularity or fraud committed in relation to such a liquidation order.”
Be it noted, that Section 95 of the I & B Code, 2016 relates to ‘Application’ by Creditor to initiate Insolvency Resolution Process”. In reality, Section 95 of the Code provides that a ‘Creditor’ may make an application either by himself or jointly with other ‘Creditors’ or through a ‘Resolution Professional’ to the ‘Adjudicating Authority’ for initiating a ‘Insolvency Resolution Process’.
Be that as it may, this ‘Tribunal’ on going through the imposed order dated 07.07.2021 in CP/IB/29/CHE/2021 passed by the ‘Adjudicating Authority’ (National Company Law Tribunal, Division Bench, Court-1, Chennai) inter alia, to the effect that at request of the Learned Counsel for the Respondents the matter was directed to be listed on 11.08.2021 for Hearing and also taking note of the fact that the matter was adjourned to 13.09.2021 (as informed by the ‘Appellant’ before this ‘Tribunal’), is of the considered view that ‘no final order was passed and as such comes to a consequent conclusion that the ‘instant Appeal’ preferred by the ‘Appellant’ is a premature and Otiose one. Viewed in that perspective, the ‘instant Company Appeal’ fails.
In fine, the ‘instant Company Appeal’ (AT) (INS) No.186 of 2021 is dismissed. No costs.
Before parting with the case, this ‘Tribunal’ makes it abundantly clear that it is open to the respective parties to raise all factual and legal contentions before the ‘Adjudicating Authority’ in the main CP/IB/29/CHE/2021 and the ‘Adjudicating Authority’ after providing adequate opportunity of Hearing to the parties, of course keeping in mind the principles of natural justice, shall dispose of the main CP/IB/29/CHE/2021 pending on its file, in a dispassionate manner, as expeditiously as possible, on merits, of course, in accordance with Law, and in the manner known to law, uninfluenced, and untrammeled with any of the observations made by this ‘Tribunal’ in this ‘Appeal’.