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TMI Blog2023 (1) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... tions as noted above. When an Application is not listed before the Court nor the Adjudicating Authority heard the parties on the said application, any observations made in reference to the said application is bound to prejudice the rights of the Applicant. The Order impugned dated 05.05.2022 thus proceeded on misconception that I.A. No. 287 of 2018 was dismissed vide Order dated 14.02.2019 whereas on 14.02.2019 neither the I.A. No. 287 of 2018 was listed nor heard and nor decided. The Adjudicating Authority committed error in rejecting application - appeal allowed. - Company Appeal ( AT ) ( Insolvency ) No. 759 of 2022 - - - Dated:- 27-1-2023 - [ Justice Ashok Bhushan ] Chairperson And [ Mr. Barun Mitra ] Member ( Technical ) For the Appellant : Mr. Saurabh Kirpal, Sr. Advocate, Mr. Arvind Kumar Gupta, Mr. Aditya Krishnamurthy, Mr. Ashutosh Tiwari and Mr. Shaurya Dogra, Advocates For the Respondent : Mr. Mukund P. Unny, Advocates for R-1. Ms. Eshna Kumar and Ms. Prachi Bhatia, Advocates for R2-R5 Ms. Ekta Choudhary, Mr. Divyank Dutt Dwivedi, Advocates for R-9 JUDGMENT ASHOK BHUSHAN, J: 1. This Appeal has been filed challenging the Order dated 05. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (vi) I.A. No. 386 of 2018 was also filed by the Surinder Singh Bhatia praying that I.A. No. 287 of 2018 filed by the Appellant be dismissed and Interim Order be vacated. (vii) The Application I.A. No. 85 of 2019 came for consideration before the Adjudicating Authority on 12.02.2019. In the cause list of the Adjudicating Authority, I.A. No. 85 of 2019 was only listed before the Adjudicating Authority, Adjudicating Authority heard I.A. No. 85 of 2019 and by order dated 14.02.2019 allowed the Application. I.A. No. 85 of 2019 was filed in I.A. No. 287 of 2018 since the Interim Order was passed in I.A. No. 287 of 2018. The operative portion of the Order dated 14.02.2019 is as follows: 19. Under the facts and circumstances and the discussions in sequel, we do not find any reason for not granting permission to the present applicant (respondent no. 2 in I.A. No. 287 of 2018) to attend the wedding ceremony of his friend s son for a limited period. However, with abundant caution, we hereby direct the present applicant to furnish Indemnity Bond of Rs. 5.00 Lakhs and the surety of a like amount with the Registry of this Tribunal. The present applicant is also d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for travel to Abu Dhabi and allowing application, no observations were required to be made by the Adjudicating Authority which may adversely affect I.A. No. 287 of 2018. It is submitted that Application 156 of 2019 was only filed to clarify that those observations may not come in the way while deciding I.A. No. 287 of 2018 which order could have been passed by the Adjudicating Authority and Adjudicating Authority erred in rejecting I.A. No. 156 of 2019. It is further submitted that the Adjudicating Authority has wrongly observed that I.A. No. 287 of 2018 was dismissed vide Order dated 14.02.2019 which observations is wholly incorrect since I.A. No. 287 of 2018 is still pending. It is submitted that the Adjudicating Authority in the Impugned Order has again sought to justify observations made in paragraph 4 which observations were both premature and incorrect. The observations made in Paragraph 4 as well as in the Impugned Order that Appellant cannot file I.A. No. 287 of 2018 were not called for since I.A. No. 287 of 2018 was not up for consideration. 5. Learned Counsel for the Liquidator submits that Liquidator has taken necessary steps in the liquidation proceedings which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces and the discussions in sequel, we do not find any reason for not granting permission to the present applicant (respondent no. 2 in I.A. No. 287 of 2018) to attend the wedding ceremony of his friend s son for a limited period. However, with abundant caution, we hereby direct the present applicant to furnish Indemnity Bond of Rs. 5.00 Lakhs and the surety of a like amount with the Registry of this Tribunal. The present applicant is also directed to inform this Bench immediately through his authorized counsel, after return from his overseas trip to Abu Dhabi, UAE. It is further directed that the applicant shall produce order of this Bench at the Indian Embassy at Abu Dhabi, UAE. 20. Accordingly, the application is allowed with the above directions. 11. It is to be noted that I.A. No. 156 of 2019 was filed by the Appellant where prayers were made as noted above. The grievance of the Appellant raised in I.A. No. 156 of 2019 was with regard to paragraph 14,17 and 18 in the Order dated 14.02.2019. We may notice the relevant paragraphs 14, 17 and 18 which are as follows: 14. It is an admitted position that Company BIL is under liquidation and under the con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Companies Act, 2013, a limited liability partnership, as defined in clause (n) of sub-section (1) of section 2 of the Limited Liability Partnership Act, 2008, or any other person incorporated with limited liability under any law for the time being in force but shall not include any financial service provider; Section 3(8)-Definition of Corporate Debtor (8) corporate debtor means a corporate person who owes a debt to any person; Thus, on plain reading of the above provisions, it is clear that either the corporate debtor or the corporate person can only file the application under section 60(5)(c), 66 and 67 of the IBC. Admittedly, the respondent (applicant of IA 287 of 2018) is neither a corporate debtor nor a corporate person . Hence under such a situation, the application so filed by the respondent i.e. applicant of IA 287, is not maintainable, being the Operational Creditor. 17. The respondent (applicant of IA 287 of 2018) has also failed to produce any evidence of the recent past about the conduct of the present applicant (respondent no. 2 of IA 287 of 2018). Moreover, it is the domain of the liquidator to raise objection, if any, when the company i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge of his duties, obligations and responsibilities; (j) to invite and settle claims of creditors and claimants and distribute proceeds in accordance with the provisions of this Code; (k) to institute or defend any suit, prosecution or other legal proceedings, civil or criminal, in the name of on behalf of the corporate debtor; (l) xxxxxxxxx (m) xxxxxxx (n) xxxxxxxx (o) xxxxxxxxx (2) The liquidator shall have the power to consult any of the stakeholders entitled to a distribution of proceeds under section 53: Provided that any such consultation shall not be binding on the liquidator: Provided further that the records of any such consultation shall be made available to all other stakeholders not so consulted, in a manner specified by the Board. Thus, it is only the Resolution Professional and/or Liquidator as the case may be, is/are competent to file an application before the Adjudicating Authority under Section 60(5)(c), 66 and 67 of IBC. 12. When we look into the observations made in the above paragraphs it is clear that the Adjudicating Authority has observed that Application filed by the Applicant i.e. I.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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