9911796707
TMI Blog2022 (11) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal initially on 04th November, 2022 when Interim Order was passed directing the Interim Resolution Professional (IRP in short) not to constitute the Committee of Creditors (CoC in short). Appeal was further taken on 07th November, 2022 on which date following order was passed: "07.11.2022: This Appeal has been filed against impugned order passed by the Adjudicating Authority on 28.10.2022 allowing Section 7 application filed by the UCO Bank. This Appeal was taken up on 04.11.2022 on which date following order was passed: "ORDER 04.11.2022: A request has been made on behalf of learned counsel for the UCO Bank to take the matter on 07.11.2022. Learned counsel for the Appellant submits that there is urgency in the matter. However, to give opportunity to the Respondent Bank we adjourn this Appeal to 07.11.2022. Till the next date the IRP may not constitute the COC. Indian Bank is permitted to file Intervention Application." Learned counsel for the UCO Bank submits that OTS proposal has already been received and it is under consideration and time of few weeks shall be required to consider the OTS proposal. Learned counsel appearing for the Indian Bank submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll steps to keep the Corporate Debtor as a going concern; b) In the event this Hon'ble Appellate Tribunal directs the Applicant to maintain status quo and direct that the Corporate Debtor continues as a going concern, then necessary directions be passed on the applicant to facilitate raising of interim finance to the tune of INR 9 Crores in order to keep the operation of the Corporate Debtor as a going concern which shall deem to comply with the provision of Section 28 of the IBC, 2016; c) Pass any other order(s)/direction(s) as this Hon'ble Appellate Tribunal may deem fit in the interest of justice;" 6. We have heard the Learned Counsel for the parties. 7. Learned Counsel for the Appellant submits that in view of the Interim Order passed by this Tribunal on 07.11.2022, the IRP is not entitled to carry on any function qua the Corporate Debtor. It is submitted that the Corporate Debtor has been managing Tea Garden where large number of workers are working who have to be paid their wages weekly. Ration is also required to be paid to the workers apart from other necessary expenses like Electricity, Diesel, etc. After the Order dated 07.11.2022 staying the Corporate Insolvency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2022, the Corporate Debtor is entitled to be restored and be permitted to function as it was functioning prior to 28.10.2022. The issue is no longer res integra. Hon'ble Supreme Court has occasion to consider the effect and consequence of an Interim Order passed by a Court in "Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association [1992 (3) SCC 1]". In paragraph 10 of the Judgement, following has been laid down: "10......The appeal filed by the appellant-company under Section 25 of the Act against said order of the Board was dismissed by the Appellate Authority by order dated January 7, 1991. As a result thereof, no proceedings under the Act were pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence."" 14. Learned Counsel for the Appellant has referred to and relied on the Judgement of "B.P.T Ltd. & Ors. Vs. R. Sudhakar & Ors." [2004 7 SCC 2019]. In the above case, one of the questions which was framed by the Supreme Court was "what is the effect of the order passed by Delhi High Court dated 21.02.1991 staying the operation of the order dated 07.01.1991 passed by the Appellate Authority? Does it mean that after the passing of the said order by the High Court, the proceedings under the Act should be treated as pending and, if so, before which authority? 15. The Hon'ble Supreme Court referred to "Shree Chamundi Mopeds Ltd." and laid down following in paragraph 13 of "B.P.T Ltd. Ors." "13. In the case on hand the situation is entirely different. The Tribunal gets jurisdiction only on reference made by the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revival of appeal or proceeding." 16. In paragraph 18, the Hon'ble Supreme Court again held that distinction has to be drawn between the stay of an order and quashing of an order. In the facts of the above case, there was interim order passed by the High Court staying the order making a reference under the Industrial Dispute Act, 1947 at the instance of workers. Question was as to whether in view of the stay of the reference order whether the proceedings shall be treated to be pending before the Industrial Tribunal. Hon'ble Supreme Court held that since the reference order itself was stayed, proceedings was not pending before any Tribunal since reference order was pre condition for initiating any proceeding before the Tribunal. No dispute was pending before the Tribunal since reference precedes dispute. 17. The ratio of the Judgment of this Tribunal in "B.P.L. Ltd. & Ors." (Supra) is the same as was laid down in the Judgement of Hon'ble Supreme Court "Shree Chamundi Mopeds Ltd." (supra) which has been followed by the Hon'ble Supreme Court. The above judgement in no manner helps the Appellant in the present case since present is a case where Order of Admission of CIRP under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the corporate debtor as a going concern, can be mitigated by issuing following directions:
I. The Chief Executive Officer (CEO)/Officers of the Corporate Debtor authorized to operate the Bank Accounts are permitted to make payment of wages of workers, workmen and employees as was being paid earlier to passing of the order dated 28.10.2022. The payment of Electricity Dues and other necessary expenses may also be carried out by the officials as mentioned above subject to submitting all details of expenditure on weekly basis to the IRP as well as to the Suspended Managing Director of the Corporate Debtor.
II. That for making any other payment it is always open for the Appellant to file an appropriate application for seeking leave of this Court.
III. The Settlement, if any, by the Suspended Directors of the Corporate Debtor with UCO Bank shall require leave of this Tribunal.
IV. I.A. No. 4221 of 2022 is allowed. Indian Bank is permitted to intervene in the matter. I.A. No. 4291 of 2022 and I.A. No. 4340 of 2022 are disposed of, as above.
The order being pronounced today, the same be not listed on 23.11.2022 as earlier ordered. List the Appeal on date fixed i.e. 10.01.2023. X X X X Extracts X X X X X X X X Extracts X X X X
|
