9911796707
TMI Blog2021 (6) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... lised in a cautious manner - matter be heard on 01.03.2021 which is also the conclusion of the Learned Judicial Member. - IA/82(AHM) 2021 in IA/18(AHM)2021 in CP(IB) 759 of 2019, IA/18(AHM)2021 and IA/40(AHM)2021 - - - Dated:- 23-2-2021 - Manorama Kumari, Member (J) And Virendra Kumar Gupta, Member (T) ORDER Learned Lawyer Mr. Abhishek Mehta appeared for the Operational Creditor. Learned Lawyer Mr. Arjun Sheth appeared. Learned Lawyer Mr. Atishay Jain appeared. Learned Lawyer Mr. Raheel Patel appeared. Learned Senior Lawyer Mr. Saurabh Soparkar appeared for the RP. Learned Senior Lawyer Mr. Neeraj Kishan Kaul appeared for the Financial Creditor. Learned Lawyer Mr. Vividh Tandon appeared. Learned Lawyer Ms. Tanaya Shah appeared. Learned Lawyer Mr. Ketul Patel appeared. Learned Senior Lawyer Mr. Percy Kavina along with Learned Lawyer Mr. Vishal Dave appeared in IA No. 18 of 2021. Learned Lawyer Mr. Kunal Kanungo appeared. Learned Lawyer Mr. Kaazvin Kapadia appeared for the Intervenor. Learned Lawyer Mr. Toshiv Goyal appeared. Learned Lawyer Mr. Deepak Joshi appeared. 1. IA 18 of 2021 is filed under Section 60(5) of the Insolvency and Bankruptcy Code, 2016 by the Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or has made a part payment to which Mr. Abhishek Mehta learned lawyer for the Operational Creditor fairly conceded that he has already been received the part payment from the Applicant/Corporate Debtor and have no objection if the CP(IB) 759 of 2019 is allowed to be withdrawn. 4. The Learned Senior Lawyer Mr. Neeraj Kishan Kaul is appearing for one of the Financial Creditor, though not party, has made an objection on withdrawal of the instant application on the ground that another application is pending before this Adjudicating Authority for adjudication. He has further raised an objection for preponement of the instant application. 5. The Learned Senior Lawyer Mr. Saurabh Soparkar appeared on behalf of the IRP is also present and submitted that, so far no CoC is constituted and has further submitted that IRP is running the affairs of the Corporate Debtor and the company is running well, the salary and wages of the workers/employees are being paid, however, some of the workers and employees are not yet paid. 6. Learned Senior Lawyer is appearing on behalf of the Petitioner/Corporate Debtor namely Mr. Percy Kavina further submitted that fire took place in the factory premis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2) All orders passed by the Tribunal shall be in English and the same shall be signed by the Members of the Tribunal constituting the Bench: Provided that the routine orders, such as call for of the records, put up with records, adjourned and any other order as may be directed by the Member of the Tribunal shall be signed by the Court Master of the Bench. (3) The order sheet shall also contain the reference number of the appeal or petition or application, date of order and all incidental details including short cause title thereof From the perusal of the proviso to Rule 92(2) adjournment falls into the category of routine orders which can be signed by the Court Master of the Bench as per the direction of Member which by itself goes to show the nature and scope of daily orders. Further, for the sake of completeness of facts of the case as well as arguments made during the course of hearing 23.02.2021, I pass my own order. 11. Before doing so, in my view, as per the contentions which we follow during the course of hearing in routine manner as well as when a special Bench is constituted, the daily order could have been passed in the following manner: So and so app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l issues remain part of the records for consideration in future, if the situation so demands. 13. For this purpose, the factual background of the matter is narrated hereunder: (a). The order of admission of CIRP was passed in the case of the Corporate Debtor on 18.12.2020. Thereafter, the Corporate Debtor settled the matter with the concerned Operational Creditor by entering into MOU. An appeal was preferred against order of Abjudicating Authority before the Hon'ble NCLAT. The Hon'ble NCLAT was pleased to pass the order on 04.01.2021. The relevant findings of the order of Hon'ble NCLAT are reproduced as under: ......In view of this factual position and keeping in view the dictum of the Hon'ble Apex Court in Swiss Ribbons and Ors. v. Union of India Ors. - MANU/SC/0079/2019 , the Corporate Debtor may avail the opportunity of seeking exit from Corporate Insolvency Resolution Process (CIRP) at the stage of pre-constitution of COC but whether the same takes care of interest of all the stakeholders involved and can be permitted is a decision to be taken by the Adjudicating Authority on the peculiar facts of the case (emphasis supplied). It would, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s well as regular Division Bench I initially was not in favour of pre-ponement as it appeared to be an attempt of forum shopping. Still I thought it fit to understand and evaluate the factual position and pass necessary order, if required so that urgent situation as, if any, could be taken care of. Hence, the hearing of this application was preponed to 23.02.2021. 15. On the date of hearing i.e., 23.02.2021, the learned senior counsel Mr. Neeraj Krishn Kaul appearing on behalf of one Financial Creditor and at the very outset strongly objected to this pre-ponement on the ground that after few days only i.e., 01.03.2021, the matter was coming up for hearing and in this matter detailed arguments were required. Learned senior counsel categorically stated that even the pre-ponement had been granted without any opportunity being given by the applicant that it was going to mention this matter on 22.02.2021 for pre-ponement. It was also argued that the order of CIRP could not be set aside in the facts and circumstances of the case as legal position was against the applicant. 16. Learned senior counsel for the IRP also appeared. On a query from us that only CIRP had been stayed and IR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o above, there (3) applications had already been disposed of as infructous in view of the said order of CIRP. 19. Having narrated the pleas and sequence of events, I state that the observations of Hon'ble Supreme Court in the case of Swiss Ribbons which have also been taken note by the Hon'ble NCLAT passing the order in the case of the Corporate Debtor which need to be considered by us while disposing of the application, the matter requires a lot of factors/legal aspects to be considered before an order in accordance with law can be passed. However, for the time being, I am restricting myself to show the applications which are pending. Such details are reproduced here-under: 20. From the perusal of above, it is noted that eight (8) Section 9 applications are pending out of which three (3) are pending before Court No. 1 and five (5) are pending before Court No. 2. One application under Section 7 of IBC, 2016, i.e., CP(IB) No. 276 of 2020 is also pending. Four applications which have been disposed of would have to be revived if the order of CIRP is set aside. Apart from this situation, I state that no financial plan has been provided to us so as required since begi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
