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Judgment
O R D E R
2.4.2024 - Heard learned Counsel for the Appellant as well as learned Counsel for the Respondent. This Appeal has been filed against the Order dated 1st March, 2024 passed by the President of the National Company Law Tribunal, New Delhi in TA (IBC) – 60(PB)/2023. The Application was filed by the Respondent No.1 for transfer of two petitions filed by Financial Creditor which were pending in Court No.3 of the Mumbai Bench of the NCLT seeking transfer to Court No.5 where another petition filed against different Corporate Debtor is pending. The Adjudicating Authority has noticed the prayer in Transfer Application in para 1 and 3 as following:-
“a)This Hon’ble Tribunal be pleased to pass an order directing transfer of Company Petition No.136/IBC/NCLT/MB/MAH/2022 pending before court No.III of the Hon’ble National Company Law Tribunal, Mumbai Bench to Court No.V of the National Company Law Tribunal, Mumbai Bench and the Company Petition No.136/IBC/NCLT/MB/MAH/2022 be clubbed and heard together with Company Petition No.380/IBC/NCLT/MB/ MAH/2021 pending before Court No.V of the Hon’ble National Company Law Tribunal, Mumbai Bench;
b.) ……
c.) For such other and further reliefs as this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the present case”
Learned Counsel for the Appellant submits that the Transfer Application was filed by Respondent No.1 who was not stakeholder and was not Applicant in Section 7 Application. It is further submitted that the Petition pending in Court 5 was admitted under Section 7 whereas the Petitions which were now transferred are not admitted Section 7 Application. It is submitted that by transfer of the Applications to be heard by Court 5, prejudice is caused to the Appellant and the impugned Order holding that the Respondent No.1 are stakeholders is not correct. It is submitted that without admission of the Application, Respondent No.1 cannot be held to be a stakeholder. The submission of the Appellant are refuted by the Respondent. It is submitted that the RERA Registration of the project is one in which three companies are treated as co-promoters. It is submitted that the Appellant is also the co-promoter of the same project in which other two petitions are filed against other two companies who were also co-promoters. The project being one, the learned President has exercised its jurisdiction under Rule 16(2) of NCLT Rules in giving direction in which no exception can be taken. It is submitted that Respondent does not press that the transfer should be made to one particular Court. The only submission of the Respondent is that all these petitions should be heard by one Bench.
We have considered the submissions made by the parties and perused the record. From the facts as noticed in para – 3 by the Adjudicating Authority, it is clear that the Appellant and other two Corporate Debtors against whom Section 7 Applications have been filed, one was admitted and other were not admitted belonging to same project. It is true that Application under Section 7 filed in Court No.5 has been admitted and the present Applications have not been admitted which have been transferred. Apprehension of the Appellant is that in view of the transfer made by the learned President referring to admitted application, the Adjudicating Authority may be influenced by the observations made in the Order and the prejudice may be caused while considering the Applications for admission. It is submitted that Respondent No.1 cannot be held to be stakeholders in the Petition where they are neither party nor they are stakeholders. There can be no dispute that the Company Petition which has been transferred, the Respondents were not party. However, the Respondents claim that they are home buyers of the same project which is being developed by all the three Companies. The power given to the President under Rule 16(d) is a wide power which can be exercised when circumstances so warrant. The President has noticed the fact that all the three companies relate to same project which are registered with the RERA, Maharashtra. In so far as apprehension of the Appellant that Section 7 Application which has been transferred to Court 5 may be influenced by observation made in the Order, we make it clear that observations made by the President were only for the purpose of transferring the Application and cannot be treated as observation on the merits of the Application which has been filed against the Appellant under Section 7; we believe that the application be decided on its own merits without being influenced by the observations made in the transfer order or the fact that another Application is admitted and pending in court No.5.
With the above observations and clarification, we see no reason to entertain this Appeal. The Appeal is dismissed.