9911796707
TMI Blog2022 (2) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... yu Infrastructure LLP (Powers Suspended) being aggrieved and dissatisfied by the orders dated 30.08.2019 in CP No. 1951/ IBC/ NCLT/ MB/ MAH/ 2019 and 16.09.2019 in MA 2984/2019 & MA 3061/2019 in C.P. 1951(IB) (MB)/2019 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench wherein the Application filed by the Respondent No. 2 herein (Financial Creditor) - 'Vejas Power Projects Ltd.' under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) against the 'Vaayu Infrastructure LLP' (Corporate Debtor) was allowed and further Application filed by the Corporate Debtor for staying the operation of Insolvency proceeding was rejected. 2. The facts giving rise to this Appeal are as follows: i) The IL&FS Financial Services Ltd. (IL&FS) had provided Wind World Wind Farms (MP) Private Limited (for short WWWFPL) with financial assistance for an amount of Rs. 100,00,00,000/- (Facility 1) and Rs. 110,00,00,000/- (Facility 2) vide Facility Agreements dated 27.06.2014 and 24.09.2014 respectively. ii) The IL&FS had assigned its debt in favour of the Financial Creditor herein pursuant to the Assignment Agreement dated 30.12.2015. The Corporate Debtor is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporate Insolvency Resolution Process. Being aggrieved, the Appellant has filed the present Appeal. Submissions on behalf of the Appellant 3. The Learned Senior Counsel for the Appellant during the course of argument and in his memo of Appeal along with Written Submissions submitted that the Appellant herein being one of the Partner of Corporate Debtor - 'Vaayu Infrastructure LLP' is aggrieved by the impugned orders dated 30.08.2019 and 16.09.2019 which are bad in law as the same had been passed by the Ld. Adjudicating Authority without even considering the relevant provisions of law and in grave violation of principles of natural justice. The Appellant as well as the Corporate Debtor were denied an opportunity to be heard and file its reply before the Ld. Adjudicating Authority, which lead to wrongful initiation of proceedings under Section 7 of the IBC. 4. It is further submitted that the initiation of Corporate Insolvency Resolution Process against the Corporate Debtor is non-est and the impugned orders initiating the same had been passed on the sham and fraudulent transactions portrayed as loan/debt by the Financial Creditor (Respondent No. 2) and the Ld. Adjudicating Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.2019 The Appellant immediately after the hearing order dated 28.08.2019 filed an application being CA No. 2984 of 2019 (at page 102, Vol. I of the Appeal). 05.09.2019 The Appellant through its counsel mentioned the aforesaid application and Ld. Adjudicating Authority allowed the circulation of the said application to 24.09.2019 and directed the Appellant to give a notice of hearing to the Financial Creditor. 10.09.2019 In the interregnum, the order dated 30.08.2019 admitting the CIRP came to the knowledge of the Appellant and was uploaded on the official website of the Ld. Adjudicating Authority on 10.09.2019. 11.09.2019 The Appellant filed another application bearing No. 3061 of 2019 under Section 424 of the Companies Act, 2013 and Section 60(5) of the IBC seeking stay of order dated 30.08.2019 passed by the Adjudicating Authority till the time MA No. 2984 of 2019 was heard and disposed of by Ld. Adjudicating Authority (at page 88, Vol. I of the Appeal). 12.09.2019 In light of the order dated 30.08.2019 initiating CIRP in the case of the Corporate Debtor, the Appellant mentioned its pending application being MA No. 2984 of 2019 and sought urgent hearing of the said appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or on any other date to which such hearing may be adjourned, the applicant appears and the respondent does not appear when the petition or the application is called for hearing, the Tribunal may adjourn the hearing or hear and decide the petition or the application ex parte." 9. It is further submitted that the Corporate Debtor being aggrieved by order dated 28.08.2019 passed by the Ld. Adjudicating Authority, filed CA No. 2489 of 2019 for recall of the said order dated 28.08.2019. In the interregnum on 10.09.2019, the Corporate Debtor became aware of the fact that the Ld. Adjudicating Authority without listing the matter for pronouncement and uploaded the impugned order dated 30.08.2019 which is again in contravention to Rule 150 of NCLT Rules. 10. It is further submitted that Corporate Debtor upon coming to know about impugned order dated 30.08.2019 filed MA No. 3061 of 2019 seeking stay on impugned order dated 30.08.2019 till CA No. 2498 of 2019 is adjudicated by the Ld. Adjudicating Authority. The Ld. Adjudicating Authority on 16.09.2019 heard both the Applications of Corporate Debtor and without application of mind passed the impugned order dated 16.09.2019 which is pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the Respondent No. 1 during the course of argument and in his short Reply submitted that vide order dated 30.08.2019 passed by Ld. Adjudicating Authority under which the Ld. Adjudicating Authority initiated Corporate Insolvency Resolution Process and appointed Mr. Shailen Shah as the Interim Resolution Professional, the Respondent No. 1. Pursuant to the order dated 30.08.2019 he has taken charge of the Corporate Debtor. Further, this Appellate Tribunal in its order dated 17.10.2019 has directed the IRP to ensure that the Corporate Debtor is maintained as a going concern. 14. It is further submitted that the Respondent No. 1 after taking charge, certain expenses in relation to the CIRP of the Corporate Debtor have been incurred including cost and expenses of the IRP. The Respondent No. 1 prays that in the event the instant Appeal is allowed by this Appellate Tribunal and the order initiating the CIRP of the Corporate Debtor is set aside, then this Appellate Tribunal be pleased to pass appropriate orders directing the Appellant to pay the expenses and costs incurred in respect of the IRP, IRP entity, IRP team and IRP advisors and any other CIRP expenses, if any, from the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 538/2019] is distinguishable for the reason that the legal position as laid down by the Hon'ble Apex Court in the various pronouncements as to the directory/mandatory nature of Statutory Rules have not been dealt with in the said judgment. It is a settled legal dictum that "when a public functionary is required to perform a public function within a time frame, the same will be held to be directory unless the consequences there for are specified". Admittedly, the consequences that may emanate as to the non-adherence/infraction of the Rules have not been indicated in the Statutory Rules. Hence, the impugned common order cannot be set aside on the ground." 18. It is further submitted that the Appellant has placed reliance on Rule 49 of the NCLT Rules, which is completely erroneous as the date of hearing which was already fixed on 28.08.2019 by the order dated 24.07.2019 making abundantly clear to the effect that the same would be its "last chance" to represent the matter. Therefore, the Rule 49(2) will not be applicable in this case. Based on these submissions there is no merit in the Appeal, the Appeal is fit to be dismissed. Submissions on behalf of the Respondent No. 4 19. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
