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TMI Blog2023 (3) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... Stakeholder in the Liquidation Process, and in any event, has no vested interest, in the Corporate Debtor, comes to a resultant conclusion that the appeal, filed by the Petitioner / Appellant, is an Otiose one, and the same is filed, only to disrupt, the Liquidation Process of the Corporate Debtor, because of the fact that the entire Sale Proceeds, were distributed to the Stakeholders, as per Section 53 of the I B Code, 2016. Looking at from any angle, the Leave, prayed for by the Petitioner / Appellant, to file the instant Comp. App, is not assented to, by this Tribunal, cementing upon the facts and circumstances of the instant case. Appeal dismissed. - IA No. 128 of 2023 in Company Appeal (AT) (CH) (INS) No. 35 of 2023 - - - Dated:- 17-3-2023 - [Justice M. Venugopal] Member (Judicial) And [Shreesha Merla] Member Technical) For the Petitioner / Appellant : Mr. P.H. Arvindh Pandian, Senior Advocate For Mr. Pradeep Raj, Advocate For the Respondent No.1 / Liquidator (Caveator) : Mr. T.K. Bhaskar, AdvocateFor Mr. Mayan H. Jain Mr. G. Pranav and Ms. Niveditha Narayanan, Advocates, Mr. R. Venkatakrishnan, Liquidator For the Respondent No.2 / : Mr. M.S. Krishnan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Appeal . Petitioner / Appellant s Citations : 6. The Learned Counsel for the Petitioner / Appellant, falls back upon the decision of the Hon ble Supreme Court of India in Samir Agrawal v. Competition Commission of India (vide Civil Appeal No. 3100 of 2020 dated 15.12.2020, reported in MANU/SC/0940/2020), whereby and whereunder, at Paragraphs 16 to 23, it is observed as under: 16. Section 45 of the Act is a deterrent against persons who provide information to the CCI, mala fide or recklessly, in as much as false statements and omissions of material facts are punishable with a penalty which may extend to the hefty amount of rupees one crore, with the CCI being empowered to pass other such orders as it deems fit. This, and the judicious use of heavy costs being imposed when the information supplied is either frivolous or mala fide, can keep in check what is described as the growing tendency of persons being set up by rivals in the trade. 17. The 2009 Regulations also point in the same direction in as much as regulation 10, which has been set out hereinabove, does not require the informant to state how he is personally aggrieved by the contravention of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates Act, 1961 is in the context of a particular advocate being penalized for professional or other misconduct, which concerned itself with an action in personam, unlike the present case, which is concerned with an action in rem. In this context, it is useful to refer to the judgment in A. Subash Babu v. State of A.P., (2011) 7 SCC 616, in which the expression person aggrieved in section 198(1)(c) of the Code of Criminal Procedure, 1973, when it came to an offence punishable under section 494 of the Indian Penal Code, 1860 (being the offence of bigamy), was under consideration. It was held that a person aggrieved need not only be the first wife, but can also include a second wife who may complain of the same. In so saying, the Court held: (SCC pp. 628-29 Para 25) 25. Even otherwise, as explained earlier, the second wife suffers several legal wrongs and/or legal injuries when the second marriage is treated as a nullity by the husband arbitrarily, without recourse to the court or where a declaration sought is granted by a competent court. The expression aggrieved person denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession any person as being a person who has suffered loss or damage. Thus, the preliminary objections against the Informant/Appellant filing Information before the CCI and filing an appeal before the NCLAT are rejected. 22. An instructive judgment of this Court reported as Competition Commission of India v. Steel Authority of India, MANU/SC/0690/2010 : (2010) 10 SCC 744 dealt with the provisions of the Act in some detail and held: (SCC pp. 768, 788-89 794, paras 37-38, 101-06 125-26). 37. As already noticed, in exercise of its powers, the Commission is expected to form its opinion as to the existence of a prima facie case for contravention of certain provisions of the Act and then pass a direction to the Director General to cause an investigation into the matter. These proceedings are initiated by the intimation or reference received by the Commission in any of the manners specified under Section 19 of the Act. At the very threshold, the Commission is to exercise its powers in passing the direction for investigation; or where it finds that there exists no prima facie case justifying passing of such a direction to the Director General, it can close the matter and/or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or company secretaries or cost accountants or legal practitioners or any of its officers to act as presenting officers before the Tribunal. Section 53-T grants a right in specific terms to the Commission to prefer an appeal before the Supreme Court within 60 days from the date of communication of the decision or order of the Tribunal to them. 103. The expression any person appearing in Section 53- B has to be construed liberally as the provision first mentions specific government bodies then local authorities and enterprises, which term, in any case, is of generic nature and then lastly mentions any person . Obviously, it is intended that expanded meaning be given to the term persons i.e. persons or bodies who are entitled to appeal. The right of hearing is also available to the parties to appeal. 104. The above stated provisions clearly indicate that the Commission, a body corporate, is expected to be party in the proceedings before the Tribunal as it has a legal right of representation. Absence of the Commission before the Tribunal will deprive it of presenting its views in the proceedings. Thus, it may not be able to effectively exercise its right to appeal in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latory, inquisitorial and adjudicatory. The powers conferred by the legislature upon the Commission under Sections 27(d) and 31(3) are of wide magnitude and of serious ramifications. The Commission has the jurisdiction even to direct that an agreement entered into between the parties shall stand modified to the extent and in the manner, as may be specified. Similarly, where it is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, the Commission is empowered to direct such modification. (page 794) 23. Obviously, when the CCI performs inquisitorial, as opposed to adjudicatory functions, the doors of approaching the CCI and the appellate authority, i.e., the NCLAT, must be kept wide open in public interest, so as to subserve the high public purpose of the Act. 1st Respondent / Liquidator s Contentions : 7. The Learned Counsel for the 1st Respondent / Liquidator submits that the Petitioner / Appellant , had full and complete knowledge of the ongoing proceedings, but he was not a Party to the Original Proceedings , before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. It is represented on behalf of the 1st Respondent / Liquidator , pursuant to the Order dated 19.01.2023 made in IA(IBC)/1018(CHE)/2022 in CP/759/IB/CB/2018, by the Adjudicating Authority , whereby the Sale as a Going Concern , for the Corporate Debtor , was allowed , by the Adjudicating Authority , and indeed, a Sale Agreement dated 27.01.2023, was executed, between the Corporate Debtor , and the 2nd Respondent , whereby, the Whole Management , was handed over to the 2nd Respondent / Company . That apart, the Sale Proceeds , in entirety , received from the 2 nd Respondent , was distributed to the Stakeholders , as per Section 53 of the I B Code, 2016. 13. Therefore, it is the plea of the 1st Respondent / Liquidator that, IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023, is to be dismissed with exemplary costs . Contentions of 2nd Respondent : 14. The Learned Senior Counsel for the 2nd Respondent submits that IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023, preferred by the Petitioner / Appellant , is a Frivolous one and an endeavour is made, to derail the Liquidation Process of the Corporate Deb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 421 of the Companies Act, 2013, as opined by this Tribunal . No wonder, an Appeal , from an Order , Approving such Resolution Plan , is only limited to the grounds, laid down in Section 61 (3) of the I B Code, 2016. Evaluation : 21. It transpires that the 1st Respondent, had filed IA (IBC)/1018/CHE/2022 in CP/759/IB/CB/2018, before the Adjudicating Authority / Tribunal (vide Section 60 (5) of the I B Code, 2016, read with Regulations 32A (e), seeking the Relief of Sale of the Corporate Debtor , as a Going Concern , by means of a Private Sale , together with other Reliefs . 22. Indeed, the Petitioner / Appellant, was not a Party to IA (IBC)/1018/CHE/2022 in CP/759/IB/CB/2018, before the Adjudicating Authority ( Tribunal ). The Swiss Challenge Bidding , was permitted by the Adjudicating Authority , on 11.03.2022. When a meeting was convened on 06.04.2022, to receive and consider all Bids , in the Swiss Challenge , the Petitioner / Appellant , had not attended the Meeting and made no offer . 23. Before the Adjudicating Authority , the Petitioner / Appellant, had not pointed out any irregularity and in the present Appeal is esto ..... X X X X Extracts X X X X X X X X Extracts X X X X
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