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TMI Blog2023 (12) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... that nothing shall be deemed to be done in good faith which is not done with due care and attention. It is further held that Section 14 will not help a party who is guilty of negligence, lapse or inaction. It cannot be said that the order passed by the Adjudicating Authority was without jurisdiction. The Adjudicating Authority had the jurisdiction to pass the order on an application filed under Section 60(5) of the Code. In the present case, the Applicant/Respondent invoked not only Regulation 31A(6) of the Regulations but also Section 60(5) of the Code - The Tribunal has recorded the reasons while disposing of the application which cannot be said to be an order having been passed without jurisdiction and the contention of the Appellant in this regard is totally incorrect. The order of the Adjudicating Authority may be, in the opinion of the Appellant, illegal but for that matter the Appellant has to prefer an appeal and not the writ petition and then a special leave petition before the Hon ble Supreme Court even against the order of the Hon ble High court by which the Appellant was relegated to avail his remedy of appeal and also granted stay till the appeal is filed. If thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scord. The Liquidator is not able to bring parties to consensus. 5.14. Thus, in view of the same, we are of the view that the Liquidator in respect of the Corporate Debtor is required to be changed for effective completion of the Liquidation process of the Corporate Debtor. 5.15. In view of the same, from the latest list provided by IBBI we hereby appoint SPP Insolvency Professionals LLP with Reg. No. IBBI/IPE-0143/IPA-1/2022- 23/50033 (email id:- [email protected]), the Insolvency Professional Entity (IPE) to carry out the Liquidation process in respect of the Corporate Debtor. The Authorization for Assignment (AFA)for the said IPE is valid till 14.02.2024. 5.16. The newly appointed IPE shall complete the Liquidation process in a time bound manner. All the stakeholders in respect of the Corporate Debtor are directed to co-operate with the IPE for completion of the Liquidation process. Keeping in view of the peculiar circumstances of the present case, we direct the Liquidator of the Corporate Debtor, to file progress report every month on a periodic basis, clearly stipulating the progress made in the Liquidation Process. 2. Although, the order dated 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... List on 16.10.2023. 5. Thereafter, another order was passed on 16.10.2023 which read as under:- At the request of Mr.N.L.Rajah, learned Senior Counsel, place the matter on 01.11.2023. The interim order passed earlier to continue till then. However, we also expect that the petitioner shall not take a major policy decision in respect of the liquidation till the next date. 6. However, the writ petition was ultimately disposed of on 01.11.2023 with the following order:- We have heard Mr.Ravi, learned Senior Counsel for M/s. Gupta and Ravi for the petitioner, Mr.N.L.Rajah, learned Senior Counsel for M/s. G.Mani Prabhu for the respondent and Mr.A.G.Sathyanarayana, learned counsel for the new Liquidator. 2. The petitioner is assailing the order passed by the National Company Law Tribunal removing the petitioner as a Liquidator. 3. Learned Senior Counsel for the petitioner submitted that the petitioner is challenging the impugned order removing the petitioner as a Liquidator before this Court as the impugned order is passed without jurisdiction. The Tribunal does not possess the authority to remove the Liquidator suo motu. The Liquidator can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 136 of the Constitution of India, in which the Appellant made the prayer to grant special leave to appeal against the final order dated 01.11.2023 passed by the Hon ble Madras High Court in writ petition and also prayed for ad-interim exparte stay on the order dated 20.09.2023 passed by the Adjudicating Authority. The SLP was however dismissed and pending applications, if any, were disposed of by the Hon ble Supreme Court vide its order dated 09.11.2023 which read as under:- Permission to file the Special Leave Petition without certified/plain copy of the impugned order is granted. 2 We are not inclined to entertain the Special Leave Petition under Article 136 of the Constitution of India. 3 The Special Leave Petition is accordingly dismissed. 4 Pending applications, if any, stand disposed of. 9. Thereafter, the Appellant filed the present appeal i.e. CA (AT) (CH) (Ins) No. 396 of 2023 under Section 61 of the Code to challenge the order dated 20.09.2023. 10. The memo of appeal is divided in separate parts and under the heading limitation , the Appellant has urged that the period spent by the Appellant both before the Hon ble Madras High Court and the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spent before the aforesaid two Hon ble Courts, in terms of Section 14 of the Act. In view of the issue which has been contested, we have heard Counsel for the parties to decide as to whether the Appellant is justified in excluding the periods spent before the aforesaid two Hon ble Courts, in terms of Section 14 of the Act or the present appeal is barred by limitation. Arguments heard. Orders reserved. It is pertinent to mention that we have not dealt with the merits of the case at this stage which shall be taken into consideration only when this issue is decided regarding the limitation. 12. Counsel for the Appellant has submitted that the Appellant is entitled to the benefit of Section 14 of the Act because the Appellant had been pursuing its remedy with due diligence and bonafidly, firstly, before the Hon ble Madras High Court where the impugned order was challenged in a writ of certiorari, inter alia, on the ground that the order was passed by the Adjudicating Authority without there being any prayer made by the Appellant for replacement of the Appellant as a liquidator of the CD and secondly without notice to the Appellant which is a violation of principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed after 53 days whereas the total period provided is 30 + 15 i.e. 45 days. It is also submitted that the Appellant has not filed a formal application for seeking condonation of delay and himself condoned the delay while referring to the previous litigation in the memo of appeal under the heading of limitation despite the fact that the Appellant was working as a liquidator who is presumed to have complete knowledge about not only the provisions of IBC but also about the relevant Regulations and Rules. It is further submitted that cause shown by the Appellant is that the Adjudicating Authority has granted a relief which has not been asked for by the Respondent in its application is patently incorrect because the Applicant/Respondent made two prayers in the application out of which prayer no. (b) was an omnibus prayer wherein the Appellant has requested the Adjudicating Authority to pass such other orders as this Hon ble Tribunal may deem fit and thus render justice. It is further submitted that even otherwise the Liquidator has no personal right to continue as such and in this regard, he has relied upon the orders passed by this Appellate Tribunal in the case of Subrata Maity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of subsection (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation. For the purposes of this section, (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction. 16. Section 14(1) of the Act deals with the suit, Section 14(2) deals with the application and Section 14(3) is in respect of filing a fresh suit instituted upon permission granted by the Court. In Section 14(1) (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the present case the Appellant, being a liquidator, knew about the statutory appeal provided under Section 61 of the Code, which even could have been filed with exemption from filing the certified copy but the Appellant chose to file a writ petition before the Hon ble Madras High Court in which though, it had been mentioned that there is an alternative remedy of appeal and was granted stay initially but later on it was found that there is a statutory appeal provided and it would be appropriate for the petitioner to avail the statutory remedy. While relegating the Appellant to avail its remedy it was also observed that it is not inclined to entertain the writ petition under Article 226 of the Constitution of India and disposed it with liberty to the petitioner to avail the alternative remedy provided under the statute keeping all the contentions open and the interim protection granted was allowed to be continued for a period of seven days for the purpose of filing the appeal. This order was passed on 01.11.2023. If the decision in the case of Kalpraj Dharamshi Ors. (Supra) is to be applied, the Appellant should have filed the appeal thereafter before the Appellate Tribunal but d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile disposing of the application which cannot be said to be an order having been passed without jurisdiction and the contention of the Appellant in this regard is totally incorrect. The order of the Adjudicating Authority may be, in the opinion of the Appellant, illegal but for that matter the Appellant has to prefer an appeal and not the writ petition and then a special leave petition before the Hon ble Supreme Court even against the order of the Hon ble High court by which the Appellant was relegated to avail his remedy of appeal and also granted stay till the appeal is filed. If this procedure is allowed to be followed then there would be no end to the filing of the writ petitions against the order of the Adjudicating Authority of the NCLT before the Hon ble High Courts and thereafter the orders of the Hon ble High Courts would be challenged before the Hon ble Supreme Court. 20. The Hon ble Supreme Court while dismissing the SLP did not grant the Appellant remedy to file appeal rather the SLP was simply dismissed with the observations we are not inclined to entertain the SLP under Article 136. The SLP is accordingly dismissed . 21. Thus, in view of the aforesaid discussi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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