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Judgment
ORDER
The Appellant who appears in person, questions propriety of the Impugned Order dated 17.12.2021, as it was passed by the learned NCLT, Chennai, in CP/IB/29/CHE/2021 in the matter of Mr. M Gagan Bothra Vs Senthil Kumar and Anr. The order sheet reflects that the Respondent despite the service of notice has not put an appearance and there has been a consistent non-appearance of the Respondent for a long time. Hence, we are proceeding to decide this Company Appeal on merit.
The aforesaid proceedings are the proceeding which was instituted under Section 95 of the I & B Code, 2016 to be read with Rule 7(2) of the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Person Guarantors to the Corporate Debtors) Rules, 2016, and the same has been rejected by the learned Adjudicating Authority, on the ground that the Appellant has not been able to prove himself to be the successor of Late Mr. S. Mukanchand Bothra.
The Appellant who appears in person, submits that the said order which has been rendered by the learned Adjudicating Authority is perverse, and without considering the relevant material on record, which was placed, by him before the learned Adjudicating Authority, wherein the factum of he, having succeeded the rights and being the legal heir of Late Mr. S. Mukanchand Bothra, was already earlier considered in a proceeding which was held in C.P. No. 540 of 2018, under Section 7 of the I & B code, 2016 in which several IAs being IA No’s. 518, 927 & 651/2019 were considered and they stood adjudicated by an order dated 15.06.2020. He has particularly drawn the attention of this Appellate Tribunal, to the findings of the learned Adjudicating Authority in its order dated 15.06.2020 while it was dealing with the proceedings of the Company Petition No. 540/2018, being the proceeding which were held under Section 7, wherein the same Ld. Adjudicating Authority has already determined the Appellant, as to be the successor of Late Mr. S. Mukanchand Bothra. The relevant observations made in Para 23 of the said order, as rendered on 15.06.2020 are extracted hereunder-
“23.It is thus clear that the Appellants are entitled to the share allotted to Late Mukanchand Bothra. No further proof of succession is needed by the Resolution Professional from the legal heirs, whose names had been substituted in place of Mukanchand Bothra. Thus, the Appeal deserves to be allowed.”
If the aforesaid paragraph, which is extracted above is taken into consideration, it has clearly been observed and concluded that the Appellant is entitled to the share which was allotted to Late Mr. S. Mukanchand Bothra and that he was held to be in succession. It has also been observed that no succession certificate as such was required to be placed for the purposes of sustaining the proceedings. It has been stated that the proceeding of the said Company Petition No. 540/2018 has attained finality.
As far as the proceeding under Section 95 of the I & B Code, is concerned, it has been dismissed exclusively on the ground that since the Appellant has not been able to prove himself as the successor of Late Mr. S. Mukanchand Bothra, in the absence of there being any succession certificate, the proceedings would not be maintainable at his behest. The said observation made by the learned Adjudicating Authority is contrary to the records, coupled with the fact that, once the Appellant has already been determined as to be the successor, in the light of Para 23, of the order passed in CP/540/2018, at the most, if there was any dispute pertaining to the Appellants, status of being the successor of Late Mr. S. Mukanchand Bothra, the same ought to have been decided, as a question on merits, by the learned Adjudicating Authority itself, rather than dismissing the same on the ground that no succession certificate placed on record. On this ground, the Impugned Order issued is held to be perverse and contrary to the evidence on record. Accordingly, the Impugned Order dated 17.12.2021, would hereby stand quashed, and the Company Appeal (AT) (CH) (Ins) No.21/2022 would stand allowed.
The matter is remitted back to the learned NCLT, Chennai, to decide the CP/IB/29/CHE/2021 afresh, exclusively on its merit. It is made clear that, except for holding the Appellant to be the successor of Late Mr. S. Mukanchand Bothra, we have not ventured to address on merit, any other aspect which relates to the merit of Section 95.