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Judgment
O R D E R
16.01.2024: Heard Learned Counsel for the parties.
This Appeal has been filed against the Order dated 07th December, 2023 passed by the National Company Law Tribunal, Kolkata Bench, Kolkata in an application under Section 95(1) filed by the State Bank of India.
Learned Counsel for the Appellant submits that there was no invocation of guarantee hence the application could not have been filed in Form-B. It is submitted that jurisdiction of filing the application is an issue before the Adjudicating Authority hence this issue may be considered.
Learned Counsel for the Bank submits that the bank Guarantee was invoked and issues regarding maintainability has been kept open by the Adjudicating Authority which may be agitated by the Appellant at the time of admission or rejection of Section 95 Application.
Learned Counsel for the RP submits that report has already been submitted, even if Report is submitted it is always open for the Appellant to file objection before the Adjudicating Authority which may be considered.
Learned Counsel for the Appellant has also referred to Judgment of the Hon’ble Supreme Court in Writ Petition No. 1281 of 2021 in Dilip B Jiwrajka Vs. Union of India & Ors. In paragraph 74 of the Judgment, Hon’ble Supreme Court has laid down following:
“74.The true adjudicatory function of the authority commences under Section 100 after the submission of the report. Another reason why we are not inclined to accept the submission is that what is described as a jurisdictional question by the petitioners may not be a simple matter to be decided as a question of law. The jurisdictional questions of the nature which have been suggested by the petitioners, namely, on whether there is a subsisting debt or whether the relationship of debtor and creditor subsists, would involve a decision on mixed questions of law and fact. The entire scheme of Sections 99 and 100 implicates time lines which have been laid down by Parliament. The entire process of implementing these time lines would be rendered nugatory if an adjudicatory role were to be read into the provisions of Section 97(5). The final reason which would militate against accepting the submission is that the provisions of Section 99 do not as such implicate any adverse civil consequences particularly if those provisions are read in the manner in which we now propose to elucidate.”
We are of the view that issues pertaining to maintainability of the Application and jurisdictional issue have to be addressed by the Adjudicating Authority at the time of admission or rejection of the Application and hence we see no reason to entertain this Appeal at this stage leaving all questions open to the Appellant to address before the Adjudicating Authority.
We have no doubt that the Adjudicating Authority shall decide and pass order after hearing parties in accordance with law. The Appeal is disposed of accordingly.