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Judgment
[Per: Justice Sharad Kumar Sharma;(Member Judicial)]
The Appellant has preferred the instant Company Appeal, being aggrieved as against the Impugned dated 11.08.2023, as it was passed in I.A.(IBC)/1174(CHE)/2021 in M.A./264/IB/2018 in TCP/198/IB/2017 along with I.A.(IBC)/1290(CHE)/2021 in I.A.(IBC)/1174(CHE)/2021 in M.A./264/IB/2018 in TCP/198/IB/2017. The consequential effect of the Impugned Order of 11.08.2023, as it was passed by the NCLT Chennai Bench, was that the aforesaid Interlocutory Applications, preferred under Section 60(5), of I & B Code, to be read with Rules 11 of the NCLT Rules, 2016, as well as, that under Section 33(3) of I & B Code, to be read with Rule 11 of the NCLT Rules, 2016, were dismissed with a cost of Rs. 1,00,000/-. The reasoning for dismissal of the aforesaid applications has been assigned by the Tribunal in the Impugned Order, which though, at this stage, this Appellate Tribunal is not required to venture into particularly, while considering the Memo of Withdrawal of Appeal, filed at the behest of the Appellant.
Factually, the issue, which may emerge for consideration is that it chances so that the Appellants have preferred a Writ Petition, being, Writ Petition No. 1001/2025 and WMP Nos. 1244, 1245 & 1247/2025, before the Honourable High Court of Judicature at Madras, by invoking the provisions contained under Article 226 of the Constitution of India, seeking a Writ of Mandamus, for calling for the records of IA No. 828/2024, with regards to the waiver in AIR No. 1939/2024, dated 27.12.2024, which was existing on the files of the Debt Recovery Appellate Tribunal, Chennai and praying for concession to the extent of issuance of directions to make 50 percent of payment, as a mandatory condition of pre-deposit in order to entertain the Appeal filed in the AIR No. 1939/2024 and consequentially, to direct the Debt Recovery Appellate Tribunal, to entertain the Appeal, filed by the Petitioner that is the Appellant herein without insisting upon to make the pre-deposit of the money as required under Section 18 of the SARFAESI Act, 2022.
The said Writ Petition came up for consideration before the Division Bench, and the Honourable High Court of Madras, on 06.03.2025, wherein, the observation was made that in view of the statement made by the Appellant that the offer made by the GRT Hotels and Resorts Pvt. Ltd., is acceptable to Respondent No. 1 and the Learned Senior Counsel for the Petitioner made a statement that they will not pursue the Appeal before the Debt Recovery Tribunal. After making the aforesaid statement and considering the same, the Writ Petition was disposed of. This order was put to challenge before the Honourable Apex at the behest of GBJ Hotels Pvt. Ltd. by way of SLP (C) No. 7301/2025 and the same was decided by a judgment of 28.04.2025 with the following observations: - 17,18,19,20
“17.Sale certificate having been issued, steps for delivery of peaceful and vacant possession of the assets of the respondent no.4 in favour of GRT Hotels and all other consequential steps, if any, shall be taken by Edelweiss ARCL in accordance with law within a month from date.
18.We clarify not having examined the claim of Edelweiss ARCL that the debt is now somewhere near Rs.186 crore + and that only Rs.153 crore could be recovered in course of the process of bidding that was undertaken pursuant to our order dated 28th March, 2025.
19.All questions, except the sale which stands confirmed, are left open for the parties to agitate before an appropriate forum in accordance with law, if so advised.
20.Edelweiss ARCL shall be at liberty to approach the Registry with a prayer for withdrawal of Rs.33 crore deposited by GRT Hotels. Once such approach is made, the said amount with accrued interest, if any, shall be released in favour of Edelweiss ARCL as early as possible.”
In fact, if the records of the proceedings which are emanating from Writ Petition No. 1001/2025, had ultimately culminated by the judgment of the Honourable Apex Court dated 28.04.2025, if that is taken into consideration. Its effect has been that the property, which is a subject matter of the instant Company Appeal, thus the same carried as its subject and in relation thereto, has been confirmed by the Honourable Apex Court in view of the observations made in Para-19 of the said judgment as extracted above.
The Learned Tribunal, while dealing with the Company Petition, by the judgment of the 11.08.2023, found that the conduct of the Appellant was dubious and thereby, dismiss the Interlocutory Applications on a payment of cost of Rs. 1,00,000/-. The Appellant thereafter, has filed a Memorandum of Withdrawal of the Appeal but however, it carries a rider that the “Appellant may be permitted to take a necessary legal action in the manner known to law only against Respondent Nos. 1, 4, 7 & 8”. This exception sought for in a Memorandum of Withdrawal of Appeal is being vehemently opposed by the Respondents, who have filed the objection and particularly the reference may be have to the contents of the Para-5, 6 & 7, on which the Learned Counsel for the Respondent has heavily harped upon that, though the withdrawal can be permitted, but the liberty as prayed for to resort to recourse known to law may not be left open as an issue based on judicial dictum, as it stands affirmed qua the confirmation of sale of the property by the judgment of the Honourable Apex Court, as rendered on 28.04.2025.
The argument in the objection as raised by the Respondent seems to be reasonable and justified. Hence, the Memorandum of Withdrawal of Appeal would stand allowed and the Appeal would stand dismissed as withdrawn simplicitor, without any liberty being reserved for the Appellant as sought for leaving a leverage to resort to any other remedy for the same subject of dispute, as prayed for in the Memorandum of Appeal, which would stand denied.
The Withdrawal Memo is allowed, the Company Appeal is permitted to be dismissed as withdrawn.