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O R D E R
23.03.2023. I.A. No. 845 of 2023 has been filed on 07.02.2023 in Company Appeal (AT) (Insolvency) 1303 of 2019 on behalf of Applicant - Poonam Resorts Limited through its Authorized Representative under Rule 11 of the NCLAT Rules, 2016 read with 151 of the Code of Civil Procedure, 1908 with following prayer:
“a)Pass an order clarifying that the Ld. Adjudicating Authority (National Company law tribunal, Mumbai bench) shall adjudicate the underlying Section 7 Application without being influenced by the observations in paragraph 9 of the Final Judgment of this Hon’ble Tribunal dated 22.05.2020 in Company Appeal (AT) (Insolvency) 1303 of 2019.”
The Appeal i.e. Company Appeal (AT) (Insolvency) No. 1303 of 2019 was preferred by the Appellant – Allahabad Bank which was disposed off vide judgment dated 22nd May, 2020.
By this Application, the Applicant seeks clarification in para 9 of the final judgment dated 22nd May, 2020 passed by three Member Bench of this Tribunal consisting of Hon’ble Justice Bansi Lal Bhat, Member (Judicial), Hon’ble V.P. Singh, Member (Technical) and Hon’ble Shreesha Merla, Member (Technical) in Company Appeal (AT) (Insolvency) Nos. 1303 & 1304 of 2019. Now, Hon’ble Justice Bansi Lal Bhat, Member (Judicial) and Hon’ble V.P. Singh, Member (Technical) have got retired. Hon’ble Shreesha Merla, Member (Technical) is sitting in this Bench with me, so the instant I.A. is listed before this Bench.
The Ld. Sr. Counsel for the Applicant during the course of argument and grounds mentioned in the instant I.A. submitted that the question for consideration before this Appellate Tribunal was limited to whether the Ld. Adjudicating Authority vide its order dated 16.10.2019 was correct in appointing a forensic auditor and conduct an enquiry into the default at the pre-admission stage. While this question was decided by this Appellate Tribunal by way of the Final Judgment, the observations made in paragraph 9 seem to suggest that this Appellate Tribunal has also rendered a finding that the Applicant has admitted the default alleged by the Appellant. It is submitted that the question whether any default was committed is still pending consideration before the Ld. Adjudicating Authority and hence any observations regarding the same in the Final Judgment should not be considered binding.
It is further submitted that in paragraph 5 of the Final Judgment, this Appellate Tribunal had resolved to decide the question whether the Adjudicating Authority was justified in ignoring the time frame prescribed under Section 7 of the IBC, 2016 and embarking upon an enquiry to determine whether the applications filed under Section 7 contained false information, when the matters were at the very threshold stage. As such, only the findings of this Appellate Tribunal deciding the question framed in paragraph 5 should be considered binding on the Ld. Adjudicating Authority.
It is further submitted that even otherwise, it is pertinent to note that upon a perusal of the common written submissions filed by the Applicant, it is evident that the Applicant made no such admission in the common written submissions. It is reiterated that the common written submissions highlighted the figure of Rs. 44,60,09,790/- as the amount claimed against the Applicant by the Appellant. However, it was clearly clarified by the Applicant in the Common Written Submissions that at best, only an amount of Rs. 18,64,69,794/- could be said to be payable.
It is further submitted that if this Appellate Tribunal does not clarify that the Ld. Adjudicating Authority is not bound by the observations in paragraph 9 of the Final Judgment, the Ld. Adjudicating Authority may be prejudiced by the same in its adjudication of the underlying Section 7 Application. Further, that no harm will be caused to the Appellant herein if the reliefs prayed for in this Application are granted as it would clarify the effect of the Judgment dated 22.05.2020. However, if this Appellate Tribunal does not grant the reliefs sought herein, it would greatly prejudice the Applicant, since the underlying Section 7 Application is presently being argued on merits. As such, the balance of convenience rests in favour of the Applicant. Based on the aforesaid submissions, the instant I.A. be allowed.
The Ld. Sr. Counsel for the Respondent – Allahabad Bank has filed his Reply to the instant I.A. No. 845 of 2023 filed by the Applicant – Poonam Resorts Limited in which it is stated that the instant I.A. is not maintainable in law for which the Appellant/Indian Bank (e-Allahabad Bank) is raising preliminary objection on maintainability as under:-
This Hon’ble Appellate Tribunal is now functus officio to entertain any Application for seeking clarification or modification of the order which was passed on 22.05.2020 in Company Appeal (AT) (Insolvency) No. 1303 of 2019 which has already been challenged by Corporate Debtor/Respondent before the Hon’ble Supreme Court by way of Civil Appeal Diary No. 4327/2021. By an order dated 09.01.2023, the Hon’ble Supreme Court has dismissed the said Civil Appeal as withdrawn. Hence, the order dated 25.05.2020 passed by this Appellate Tribunal has attained its finality, therefore Corporate Debtor/Respondent has no legal right to re-agitate the same in this Appellate Tribunal. On this ground alone, the I.A. 845 of 2023 interalia seeking modification/clarification of the order dated 22.05.2020 shall deserves to be dismissed with heavy costs.
ii) The Corporate Debtor/Respondent has taken out the present IA for seeking modification/clarification of order, which was passed almost three years ago with an oblique motive to withdraw the statement of admission of defaulted amount made in their written submissions filed in the above proceedings, which is not permissible in law. While quashing and setting aside the impugned order dated 16.10.2019 passed by the Adjudicating Authority (NCLT, Mumbai Bench), this Appellate Tribunal in para 9 of the order dated 22.05.2020, it has been categorically observed and recorded that the Corporate Debtor/Respondent has clearly admits the liability of dues. The said order dated 22.05.2020 has attained its finality and also acted upon, therefore it is not open to Corporate Debtor/Respondent to re-agitate or withdraw the statement made before this Appellate Tribunal, after a period of almost three years. The present Application is nothing but an afterthought and abuse of the process of law.
iii) It is pertinent to note that, inspite of order and direction of this Appellate Tribunal on 22.05.2020 to adjudicate and decide the pending Company Petition under Section 7 of IBC, 2016 expeditiously without loss of further time, the Application has not admitted by the Adjudicating Authority due to one or other reason. It is pertinent to note that, the total dues of both accounts are around Rs. 100 Crores, the Company Petitions under Section 7 are pending for admission for the last five years, therefore necessary directions be issued to the Adjudicating Authority to decide the same in a time bound manner.
iv) The present Interim Application has filed by Corporate Debtor/Respondent with a view to further delay the Section 7 Petition. The present IA is only dilatory tactic on the part of the Applicant to delay the admission of Section 7 petition pending before the Adjudicating Authority. It is pertinent to note that, the Corporate Debtor/Respondent is taking adjournments one or other reason including the ground that above Interim Application for modification/clarification is pending before this Appellate Tribunal. On 15.03.2023, the Corporate Debtor/Respondent again sought time on the ground that the above IA is listed on 23.03.2023 before this Appellate Tribunal. Now the matter is again kept on 27.03.2023.
Heard the Ld. Sr. Counsel for the Applicant – Poonam Resorts and Ld. Sr. Counsel for the Respondent – Allahabad Bank in I.A. No. 845 of 2023.
After hearing the parties and in view of the fact that the Applicant herein /Corporate Debtor/Respondent have preferred the Civil Appeal Diary No. 4327 of 2021 whereby the Hon’ble Supreme Court passed order which reads as hereunder:
“Learned Senior Advocate appearing on behalf of the appellant seeks permission to withdraw the present appeal. In view of the statement made, the appeal is dismissed as withdrawn.”
In view of the facts and circumstances, as the matter has travelled upto the Hon’ble Supreme Court and after withdrawal of aforesaid Civil Appeal against the judgment dated 22.05.2020 passed by this Appellate Tribunal filed by the Corporate Debtor/Respondent before the Hon’ble Supreme Court, we are not inclined to pass order on I.A. No. 845 of 2023 for clarification of judgment dated 22.05.2020. Keeping in view of the aforenoted facts, the I.A. No. 845 of 2023 is not maintainable and it is hereby dismissed.