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TMI Blog2020 (3) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... urt - The permission to go on appeal against the company under liquidation was obtained by the respondent herein and this Adjudicating Authority by order dated April 8, 2019 has given approval to the respondent to file appeal against the corporate debtor against the award passed by the hon'ble sole arbitrator. Thus, in the interest of justice, keeping in mind the spirit of the IBC, focus of the company in liquidation is to maximisation of the asset - the application is allowed. - Misc. A. No. 60/CTB/2019 connected with C. P. (IB) No. 593/KB/2017. - - - Dated:- 16-1-2020 - Ms. Sucharitha (R.) (Judicial Member) For the Liquidator : Saswat K. Acharya , S. Pholgu and Ashish K. Dey For the Respondent : Ratnanko Banerjee , Senior Advocate with Touseef Ahmed Khan and Abid Jamal ORDER MS. SUCHARITHA (R.) (JUDICIAL MEMBER). - 1. This application has been filed by the liquidator under section 60(5) of the Insolvency and Bankruptcy Code, 2016 read with rule 11 of the National Company Law Tribunal Rules, 2016. The corporate debtor is under liquidation by the order of the hon'ble National Company Law Tribunal, Kolkata Bench dated December 6, 2018. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be instituted by the liquidator, on behalf of the corporate debtor, with the prior approval of the Adjudicating Authority. 4. The enactment clearly provides for prior approval of the Adjudicating Authority by the liquidator before initiation of any suit. However, in this application prior approval has not been obtained by the liquidator. Hence, the application filed under section 34 of the Arbitration and Conciliation Act, 1996 is void ab initio. And, therefore, the present application cannot be filed seeking approval of already done act. The Insolvency and Bankruptcy Code, 2016 in an equal and clear statutory provision, prohibits the liquidator from filing any application/suit without prior approval of the Adjudicating Authority. Hence, the respondent states this application ought to be dismissed. 5. Under section 33(5), the liquidator ought to have obtained prior approval before initiation of the suit. The question before us is, can this Adjudicating Authority ratify the Act of the liquidator subsequently, when the Act has specifically said that prior approval is must. And if so at what stage the de facto approval can be sanctioned and the effect of the same on the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc., in winding up by or subject to supervision of court.-(1) Where any company is being wound up by or subject to the supervisions of the court- (a) any attachment, distress or execution put in force, without leave of the court, against the estate or effects of the company, after the commencement of the winding up ; or (b) Any sale held, without leave of the court, of any of the properties or effects of the company after such commencement ; shall be void. (2) Nothing in this section applies to any proceedings for the recovery of any tax or impost or any dues payable to the Government.' . . . Thus from the clear and unambiguous language of section 446, it can be seen that the leave required is not a condition precedent and can be granted ex post facto. In Bansidhar Shankarlal v. Mohd. Ibra him [1971] 41 Comp Cas 21 (SC), the Supreme Court was directly concerned with the question as to whether leave was a condition precedent or not and held (at page 25) : 'Even granting that sanction under section 179 does not dispense with the leave under section 171 of the Act, to institute a proceeding in execution against a company ordered to be wound up, we do not think t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did. 7. The learned liquidator also filed various judgments, i. e., (i) O. S. A. No. 1 of 2001, in the High Court of Himachal Pradesh at Shimla order dated August 9, 2012 (ii) C. S. (COMM) No. 470 of 2016 and C. C. (COMM) No. 73 of 2017, in the High Court of Delhi order dated July 18, 2019 (iii) O. M. P. (Comm.) No. 397 of 2016 in the High Court of Delhi order dated December 11, 2017 (iv) the National Company Law Appellate Tribunal, Company Appeal (AT) (Insolvency) No. 285 of 2018 and the respondent in support of this claim has also filed hon'ble Supreme Court judgment dated July 14, 1994 in Review Petition (C) No. 131 of 1994 in Civil Appeal No. 7456 of 1993, State of U. P. v. Rajiv Gupta. The question squarely lies then specific provision under the enactment has not been followed by the liquidator. Can we set aside the irregularity under application under rule 11 of the National Company Law Tribunal Rules, 2016 ? Secondly, whether de facto approval of sanction is allowed and up to what stage can we allow de facto sanction ? 8. What ought to be done, if the parties failed to do. It cannot be ratified by the subsequent Act. However, the petitioner counsels vehemently ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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