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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 ..... ght a 'Leave', to prefer the instant Comp. App (AT) (CH) (INS.) No. 35 of 2023, in respect of the 'Impugned Order', dated 19.01.2023, passed by the 'Adjudicating Authority' ('National Company Law Tribunal', Division Bench - II, Chennai) in IA(IBC)/1018(CHE)/2022 in CP/759/IB/CB/2018. Petitioner / Appellant's Submissions : 2. According to the Petitioner / Appellant, it being a 'Member' of the 'Stakeholders Consultation Committee' of the 'Corporate Debtor' / 'M/s. St. John Freight Systems Ltd.' ('under Liquidation'), is 'Aggrieved', by the 'Impugned Order', so passed and 'owing to the prevalent exigencies, prays for 'Granting' of 'Leave' to file the instant 'Appeal', because of the fact that 'no prejudice', will be caused to anyone, if the 'Interlocutory Application', is 'allowed', by this 'Tribunal'. 3. Advancing his argument, the Learned Senior Counsel for the 'Petitioner / Appellant' submits that the 'concept of 'Sufficient Cause', is 'alien' to the maintaining of an 'Appeal', under Section 61 (1) of the I & B Code, 2016. Moreover, any 'Person', who is 'Aggrieved', may maintain an 'Appeal', if he has a 'legal grievance', to agitate, which involves the 'violation' of 'any proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings. What is also extremely important is regulation 35, by which the CCI must maintain confidentiality of the identity of an informant on a request made to it in writing, so that such informant be free from harassment by persons involved in contravening the Act. 18. This being the case, it is difficult to agree with the impugned judgment of the NCLAT in its narrow construction of section 19 of the Act, which therefore stands set aside. 19. With the question of the Informant's locus standi out of the way, one more important aspect needs to be decided, and that is the submission of Shri Rao, that in any case, a person like the Informant cannot be said to be a "person aggrieved" for the purpose of sections 53B and 53T of the Act. Shri Rao relies heavily upon Adi Pherozshah Gandhi (supra), in which section 37 of the Advocates Act, 1961 came up for consideration, which spoke of the right of appeal of "any person aggrieved" by an order of the disciplinary committee of a State Bar Council. It was held that since the Advocate General could not be said to be a person aggrieved by an order made by the disciplinary committee of the State Bar Council against a particular advocate, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no reason to read the said section in a restricted manner as is suggested by the learned counsel for the appellant. Section 494 does not say that the complaint for commission of offence under the said section can be filed only by the wife living and not by the woman with whom the subsequent marriage takes place during the lifetime of the wife living and which marriage is void by reason of its taking place during the life of such wife. The complaint can also be filed by the person with whom the second marriage takes place which is void by reason of its taking place during the life of the first wife." (page 628) 21. Clearly, therefore, given the context of the Act in which the CCI and the NCLAT deal with practices which have an adverse effect on competition in derogation of the interest of consumers, it is clear that the Act vests powers in the CCI and enables it to act in rem, in public interest. This would make it clear that a "person aggrieved" must, in the context of the Act, be understood widely and not be constructed narrowly, as was done in Adi Pherozshah Gandhi (supra). Further, it is not without significance that the expressions used in sections 53B and 53T of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impliciter to cause an investigation into the matter. Issuance of such a direction, at the face of it, is an administrative direction to one of its own wings departmentally and is without entering upon any adjudicatory process. It does not effectively determine any right or obligation of the parties to the lis. Closure of the case causes determination of rights and affects a party i.e. the informant; resultantly, the said party has a right to appeal against such closure of case under Section 26(2) of the Act. On the other hand, mere direction for investigation to one of the wings of the Commission is akin to a departmental proceeding which does not entail civil consequences for any person, particularly, in light of the strict confidentiality that is expected to be maintained by the Commission in terms of Section 57 of the Act and Regulation 35 of the Regulations." 101. The right to prefer an appeal is available to the Central Government, the State Government or a local authority or enterprise or any person aggrieved by any direction, decision or order referred to in clause (a) of Section 53-A [ought to be printed as 53-A(1)(a)]. The appeal is to be filed within the period specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al before any orders adverse to it are passed in such cases. The Tribunal has taken this view and we have no hesitation in accepting that in cases where proceedings initiated suo motu by the Commission, the Commission is a necessary party. 106. However, we are also of the view that in other cases the Commission would be a proper party. It would not only help in expeditious disposal, but the Commission, as an expert body, in any case, is entitled to participate in its proceedings in terms of Regulation 51. Thus, the assistance rendered by the Commission to the Tribunal could be useful in complete and effective adjudication of the issue before it." (page 788) "125. We have already noticed that the principal objects of the Act, in terms of its Preamble and the Statement of Objects and Reasons, are to eliminate practices having adverse effect on the competition, to promote and sustain competition in the market, to protect the interest of the consumers and ensure freedom of trade carried on by the participants in the market, in view of the economic developments in the country. In other words, the Act requires not only protection of free trade but also protection of consumer interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2023. Also that, the 'Petitioner / Appellant', had not raised any contention, relating to the conduct of the whole 'Liquidation Process', conducted by the '1st Respondent', in any of its 'Pleadings', and still the 'Adjudicating Authority', had granted 'Opportunity', to it, to go through the 'whole process', and to put forth its contentions. 9. The Learned Counsel for the 1st Respondent / Liquidator takes a stand that in the '9th Meeting' of the 'Stakeholders Consultation Committee' dated 30.10.2021, when the 'Proposals', received by the 'Liquidator', were put to 'Vote', before the 'SCC Members', the 'Petitioner', who was part of the said meeting, had voted against all the 'Proposals' received. In reality, the 'Petitioner / Appellant', had furnished a reason in rejecting the 'Proposals', to effect that 'it wants the Promoter, to takeover the Company'. 10. On behalf of the 1st Respondent / Liquidator, it is brought to the notice of this 'Tribunal' that the 'Petitioner' made an endeavour to question the 'Order' dated 11.03.2022, passed by the 'Adjudicating Authority', in and by which, the Respondent herein, was permitted to conduct the 'Swiss Challenge Auction', by way of Comp. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entire 'Purchase Consideration'. 16. According to the 2nd Respondent, the concept of 'Swiss Challenge Order', is recognised by the Hon'ble Supreme Court's Judgement, in the matter of Ravi Development v. Shree Krishna Prathisthan and Ors. (vide Civil Appeal No.3459 of 2009), and in respect of the 'Swiss Challenge Order' dated 11.03.2022, the 'Petitioner / Appellant', had preferred an Appeal in Comp. App (AT) No. 238 of 2022 and that the said 'Appeal', came to be 'dismissed', by this 'Tribunal', on 11.07.2022, and the 'Order' dated 11.03.2022, made in respect of 'Swiss Challenge', had attained 'finality'. 17. The Learned Counsel for the 2nd Respondent points out that the 'Petitioner / Appellant', is advancing the 'Erstwhile Promoters Agenda', and that the 'Erstwhile Promoter' of the 'Corporate Debtor', has set up the 'Petitioner / Appellant', to file this 'Application', to delay and derail the process. 18. The Learned Counsel for the 2nd Respondent comes out with a plea that the 'Petitioner / Appellant', is not a 'Stakeholder', in the 'Liquidation Process' of the 'Corporate Debtor', and that the '2nd Respondent', had executed the 'Going Concern Purchase Agreement', for the take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 'allowed' by the 'Adjudicating Authority'), a 'Sale Agreement', was executed by the '2nd Respondent' with the 'Corporate Debtor' and the '2nd Respondent', took over the 'Whole Management' and the 'Sale Proceeds', were distributed to the 'Stakeholders', as per Section 53 of the I & B Code, 2016. 25. In the light of foregoings and this 'Tribunal', bearing in mind a prime fact that the 'Petitioner / Appellant', is not a 'Stakeholder' in the 'Liquidation Process', and in any event, has 'no vested interest', in the 'Corporate Debtor', comes to a resultant conclusion that the 'IA No. 128 of 2023 in Comp App (AT) (CH) (INS.) No. 35 of 2023', 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 (AT) (CH) (INS.) No. 35 of 2023, is 'not assented to', by this 'Tribunal', cementing upon the facts and circumstances of the instant case. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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