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TMI Blog2023 (1) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. RST. A. No. 842/KB/2020 for restoration of main petition i.e. CP (IB) No. 04/KB/2019 was allowed and further directed that the CP (IB) No. 04/KB/2019 be listed for hearing on 16.03.2021. 2. The facts giving rise to this Appeal are as follows : i) The Respondent as the Financial Creditor in the month of 2019 filed application being CP (IB) No. 04/KB/2019 under Section 7 of the IBC. During the pendency of the Section 7 application the Respondent had filed an application before the Adjudicating Authority being CA (IB) No. 123/KB/2020 seeking to withdraw the Section 7 application which was filed against the Appellant / Corporate Debtor with liberty to pursue the matter against the corporate debtor in the event of default in execution of the Deed of Assignment between the Respondent and one Abhinandan Holdings Pvt. Ltd. (intending assignee). ii) By an order dated 23rd January, 2020, the Adjudicating Authority allowed CA (IB) No. 123/KB/2020 filed by the Respondent by passing the following order:- "Ld. Sr. Counsel for the financial creditor appears. Ld. Counsel for the corporate debtor appears. Both of them submitted that matter is settled. For this purpose, CA(IB) 123/KB/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has fraudulently suppressed material facts in an attempt to pollute the pure stream of justice and unless the proceedings before the Adjudicating Authority and immediately stayed it will amount to abuse of the process of law since the party against whom the order is passed was not made a party to the impugned proceedings and accordingly could not place material documents on record imperative for adjudication of the revival application. The Apex Court has repeatedly invoked and applied the rule that a person who does not disclose all material facts and has not made necessary parties a part of the proceedings has no right to be heard on merits of his grievance: * Union of India and others Vs. Maneesh Suneja (2001) 3 SCC 92, * Sunil Poddar and Others Vs. Union Bank of India (2008) 2 SCC 326 and * G. Jayshree and Others Vs. Bhagwandas S. Patel and others (2009) 3 SCC 141. 5. It is further submitted that the Adjudicating Authority has passed the impugned order on the basis of a prima facie satisfaction that there is default on the part of the assignee based on the rejection letter dated 2nd March, 2020, not taking into account the fact that the same letter is under challenge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made. It was thus the duty and obligation of the Respondent, to act in terms of the negative covenant in the said agreement and not initiate any legal proceedings against the Appellants, which for the sake of convenience, is set out hereinbelow: "7.4.5 Upon receipt of initial 25% of the consideration, JMFARC shall keep in abeyance all legal actions and legal proceedings initiated by JMFARC against Howrah Mills and its guarantors." 7. It is further submitted that according to the Respondent the third-party assignee defaulted in making payment under the aforesaid Agreement after having paid the first instalment of Rs. 6.50 crores being 25% of the amount agreed between the Respondent and AHPL. In the Agreement to Assign dated 15th January, 2020, there is no mention or provision of the purported liberty on the part of the Respondent to continue legal proceedings against the Appellant, however, despite the same the Respondent filed the revival application and obtained the impugned order by suppressing the foregoing crucial material facts which unequivocally establishes that there is not admitted crystallized debt and the application was pre-mature and liable to be set aside at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in RST. A. No. 842/KB/2020 in CP (IB) No. 04/KB/2019 was stayed. Further, 'Abhinandan Holdings Private Limited' appeared and filed his reply affidavit. 10. The Ld. Counsel for the Respondent No. 2 - 'Abhinandan Holdings Private Limited' during the course of argument and in his reply affidavit along with written submissions submitted that impugned order is a nullity part from being perverse and should be set aside. In view of the order of injunction passed by a civil court on October 20, 2020 when there was no proceeding pending under the IBC, the financial creditor/Respondent No. 1 herein could not have relied upon the revocation letter dated 2nd March, 2020 as part of its restoration application which was filed before the Adjudicating Authority. The order dated 20th October, 2020 is subsisting, the financial creditor remains injuncted to rely upon the purported revocation letter. The financial creditor was restrained from placing reliance upon the revocation letter dated 02nd March, 2020 and therefore, the order impugned passed by the Adjudicating Authority placing reliance upon the revocation letter dated 02nd March 2020 is an act of perversity. The financial creditor i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2022' wherein Section 7 Application before the NCLT, Kolkata be directed to be withdrawn in terms of the settlement. 13. On the other hand, the Ld. Counsel for the Respondent No. 1- J.M. Finance Asset Reconstruction Company Limited during the course of argument and in his reply affidavit along with written submissions submitted that the Appellant is intentionally trying to mislead this Tribunal by stating that no default was committed by the Appellant. The Respondent No. 1 had originally filed CP(IB) 04/KB/2019 (Section 7 Application) against the Appellant since the Appellant had defaulted on its legitimate dues owed to the Respondent No. 1. Moreover, said Section 7 Application was withdrawn only in light of the assignment to the Respondent No. 2 on the terms and conditions specified therein. Vide order dated 23.01.2020 passed in presence of the Appellant, the Adjudicating Authority had proceeded to grant liberty to Respondent No. 1 to revive the Section application in case the settlement between Respondent No. 2 and Respondent No. 1 failed. That the said order was passed with the consent of both Respondent No. 1 and Appellant. At the time of the passing of the order dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly chose not to file any application or raise any challenge before the Adjudicating Authority. In fact, this reveals the nexus and collusion of the Appellant and the Respondent No. 2. In light of the aforesaid intentional omission of the Respondent No. 2 from raising any objection, it is evident that Respondent No. 2 was not aggrieved by the impugned order in any manner. The Adjudicating Authority has also granted liberty to the Appellant to raise the aforesaid issue in CP(IB) 04/KB/2019. 17. It is further submitted that the Adjudicating Authority has the inherent power under Rule 11 of the NCLT Rules, 2016 to revive Applications which have been withdrawn as settled if the settlement fails. Pertinently, this Tribunal in its judgments has also clarified the aforesaid position. * Sree Bhadra Parks and Resorts Ltd. Vs. Sri Ramani Resorts and Hotels Pvt. Ltd., Company Appeal (AT) (Ch) (Ins.) 06 of 2021, * Amrit Feeds Vs. S.S. Enterprises, Company Appeal (AT) (Ins.) 678 of 2019 and * Ruchita Modi Vs. Mrs. Kanchan Ostwal and Anr., Company Appeal (AT) (Ins.) No. 1000 of 2019. Furthermore, the Hon'ble Supreme Court vide order dated 31.01.2020 decided the fact that the Adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... done by 15.09.2020. However, no such payments were made as is evident. The said submission was being made only to frustrate and delay the present proceedings in as much as the matter be not referred to the Adjudicating Authority for final adjudication. Further, neither the Appellant nor the Respondent No. 2 has approached this Tribunal with clean hands and hence, do not merit any relief from this Tribunal. The Appellant has raised baseless and frivolous contentions which are contrary to settled legal principles in order to cause delay & frustrate the legal rights of the Respondent No. 1 and also create barriers in respect to the liberty granted by the Adjudicating Authority through its order dated 23.01.2020. In light of the aforesaid, the present Appeal be dismissed with exemplary costs on the Appellant and the Respondent No. 2 as the impugned order does not prejudice the Appellant or the Respondent No. 2 in any manner whatsoever. 20. After hearing Ld. Sr. Counsel for the Appellant and Ld. Counsel for the Respondent No. 1 and going through the pleadings made on behalf of the parties and also the Order dated 09.12.2021 passed by this Bench whereby after hearing Ld. Counsel for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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