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Judgment
ORDER
24/05/2023: This order shall dispose of two applications i.e. I.A No. 442 of 2023 & I.A. No. 439 of 2023 filed by the Applicant/Appellant for seeking leave of this Tribunal to file the accompanying appeal.
Counsel for the applicant has submitted that though these applications have been filed but no such application is required to be filed in view of Section 61 of the Insolvency and Bankruptcy Code, 2016 (in short ‘Code’) which confers a statutory right of an appeal upon any person who is aggrieved against the order of the Adjudicating Authority.
He has also submitted that there is no provision for seeking leave of this Tribunal to file an appeal against the order of the Adjudicating Authority either in the Code, Regulations or the NCLT and NCLAT Rules.
He has earnestly requested that this practice of filing of an application for seeking leave of the Appellate Tribunal to file an appeal may be discontinued and further submitted that in case the Tribunal or the Respondent has any objection about the maintainability of the appeal on the ground that the appellant is not an aggrieved person then it can be decided as a preliminary issue by the Appellate Tribunal before deciding any other issue on merits.
He has also referred to a decision of the Hon’ble Supreme Court in the case of Samir Agrawal Vs. Competition Commission of India Civil Appeal No. 3100 of 2020 to contend that such orders are passed in rem and anyone who suffers loss because of the said order has a right to file the appeal.
We have heard Counsel for the Applicants and perused the record of these applications.
At the outset, we may record that this Tribunal is not looking into the merits of the appeals which have been filed against the order dated 31.03.2023 which came to be passed on an application filed under Section 60(5) of the Code.
We are rather looking into the applications which are filed for seeking leave of this Tribunal for the purposes of filing of these appeals. In this regard, it would be relevant to refer to Section 61 of the Code, which deals with Appeals and Appellate Authority.
Section 61(1) read as under:-
Section 61(1) “Notwithstanding anything to the contrary contained under the Companies Act 2013 (18 of 2013), any person aggrieved by the order of the Adjudicating Authority, under this part may prefer an appeal to the National Company Law Appellate Tribunal.”
According to the aforesaid provisions, right to appeal has been granted by the statute to any person who is aggrieved by the order of the Adjudicating Authority.
We could not find any provisions form the Code, Regulations or even in the NCLT & NCLAT Rules, which prescribes for the leave to file an appeal, therefore, such an application is definitely uncalled for and should not have been filed.
Thus, in view of the aforesaid discussion, we are of the considered opinion that these applications filed by the Appellant/Applicant for seeking leave of this Tribunal to file an appeal is totally misconceived and is not maintainable.
Consequently, these appeals filed by the Appellant are hereby entertained in view of Section 61 of the Code subject to any just objection which may be raised by the Respondents or even by the Appellate Tribunal about the locus standi of the Appellant to file the appeal as an aggrieved person.
At this stage, we also direct the Registry of the NCLAT, not to insist upon the filing of such an Application for seeking leave to appeal.