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Judgment
ORDER
18.04.2023: Heard Mr. V Seshagiri, learned counsel for the applicants as well as Mr. Simran Jyot Singh, learned counsel who has appeared on behalf of Respondent/alleged contemnors No.1 and 2. The present application has been filed under Sections 72 and 73 of the Insolvency & Bankruptcy Code, 2016 read with Section 425 of the Companies Act, 2013 and Rule 11 of the NCLT Rules, 2016. In the petition following reliefs has been sought for :
allow the present contempt case for violation of order dated 22.01.2019 passed by the Hon’ble National Company Law Appellate Tribunal disposing off Company Appeal (AT)(Ins) no.35 of 2019.
issue appropriate directions against Respondent No.2 for material and wilful omissions in his statement relating to the affairs of the Respondent Company and making false representation prior to the insolvency commencement dated i.e. 17.12.2018; and
pass any such order(s) as deemed necessary and fit by this Hon’ble NCLAT in the interest of justice and fairness.
Learned counsel for the applicant tried to persuade the Court that by suppression of fact and misleading an order was obtained from this Tribunal on 22.01.2019 whereby the order passed by the Adjudicating Authority i.e. National Company Law Tribunal New Delhi under Section 7 of the Code was set aside. It was argued that before this Tribunal certain material facts were suppressed. Learned counsel for the applicant tried to persuade the Court that though there was Memo of Understanding between the parties those facts were not disclosed before the Tribunal and order was passed by a Division Bench of this Tribunal, presided over by Hon’ble Mr. Justice S.J. Mukhopadhaya, the then Chairperson. In sum and substance it has been submitted that if the Court is satisfied that earlier this Tribunal was misled then in that event this Court can record that prima facie case under Section 72 and 73 of IBC is made out and thereafter the petitioners may take proper steps. It has been argued that it is a case of contempt against the alleged contemnors. It was admitted by learned counsel for the appellant that in Company Appeal (AT)(Ins) No.35/2019 after hearing both the parties order was passed and this Tribunal was pleased to order that the application preferred by Respondent (applicant herein) under Section 7 of the I&B Code is dismissed and that this Tribunal has noticed that there was no corporate debt. He further admits that from para 4 of the order dated 21.01.2019 it is evident that appellant was represented and after hearing appellant herein and contemnors herein the order was passed.
Mr. Simran Jyot Singh, learned counsel for allege contemnor 1 and 2 argued that under the provisions of Section 2(b) of the Contempt of Court Act, 1971 civil contempt can be initiated on allegation of wilful disobedience to any judgement decree, direction, order writ other process of a court or wilful breach of an undertaking given to a Court and the order passed by the Court in this case, however, in the present case there is no allegation of any disobedience against contemnors. Moreover it is not a case of commission of criminal contempt and as such the application filed by the applicant may not be entertained.
On examination of the order dated 22.01.2019 it is a fact that Company Appeal (AT)(Ins) No.35 of 2019 was allowed long back on 22.1.2019 whereas the present application was presented before this Tribunal on 17.11.2021. From the order it is reflected that after hearing both the parties the order was passed. It is appropriate to reproduce para 4 of the order:
“The contesting respondents-Mr. Rakesh Kumar Gupta and Ms Swati Goel have appeared and not disputed the stand taken by the Corporate Debtor before the Adjudicating Authority that the Corporate Debtor was ready to deliver and transfer three plots, subject to payment of the full sale consideration. The Adjudicating Authority failed to consider the aforesaid plea taken by the Corporate Debtor, and admitted the application under Section 7 of the I&B Code.”
In view of aforesaid fact it is evident that it is not a case that behind back of the applicant order was passed. Accordingly it cannot be inferred that the Court was misled in passing such order. Moreover if we accede to the request made in the application that misrepresentation was made and fraud was committed in that event first of all it was required on the part of the applicant to immediately approach this Tribunal and apprise the court regarding concealment of fact. However, from the order it is reflected that after hearing both the parties the order was passed and the present application was filed much belatedly.
Be that as it may on perusal of order dated 22.01.2019 it is evident that the applicant had participated in the proceeding and in their presence order was passed. After the order was pronounced at much belated stage there was no reason in entertaining the present application as if the court was misled.
We donot find any merit in the application, accordingly the Contempt Petition No.05/2022 is dismissed.