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TMI Blog2024 (2) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... um v. Anwar Begum [ 1958 (5) TMI 50 - SUPREME COURT ] wherein it is observed that the question of addition of parties under Rule 10 of Order 1 of CPC is generally not one of initial jurisdiction , of the Court but of a judicial discretion , which has to be exercised in view of all facts and circumstances of a particular case; but in some cases it may raise controversies as to the power of the Court in contra distinction to its inherent jurisdiction or in other words of jurisdiction in the limited sense in which it is used in Section 115 of the Civil Procedure Code. This Tribunal bearing in mind of a crystalline fact that the Petitioner in IA 57/2024 in Comp. App. (AT)(CH)(Ins.) No. 446 of 2023 is a creditor to the Corporate Debtor is not to be impleaded in the instant Appeal as a third Respondent because of the fact that it is neither a necessary party nor a proper party to the instant Appeal to be decided by this Tribunal on merits, at the time of Final Hearing . In view of well settled principle in law that to add a person as a prospective proposed Respondent is not a substantive right but undoubtedly, it is one of procedure. As such, this Tribunal unhesitatingly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the balance 4.03% voting share was held by the Homebuyers Group. 5. It is the version of the petitioner, in IA 57 of 2024, in Comp. App.(AT)(CH)(Ins.) No. 446 of 2023, that no Resolution Plans were submitted by any independent third party, to take over the Corporate Debtor and that the Suspended Directors viz. the Appellant Mr. Kamlesh Kumar and Mr. Anand Kumar along with Related Parties , furnished a Resolution Plan , to take over the Corporate Debtor but the said Resolution Plan was rejected, by the Committee of Creditors with 95.97% voting against the said Resolution Plan. 6. It comes to be known that the Committee of Creditors, with 95.97% voting also resolved to Liquidate the Corporate Debtor in terms of the I B Code, 2016. In reality, the second Respondent /Resolution Professional had filed an IA/IBC/919/CHE/2022, 0n 21.07.2022, seeking to Liquidate the respective Corporate Debtor . 7. Apart from that, some of the Homebuyers of the units in the project GST Grand (Project) assailed the constitution , of the Committee of Creditors and the decision made therein before the Adjudicating Authority/Tribunal through applications viz., IA/IBC/7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent/Appellant, before the Adjudicating Authority/Tribunal , the Petitioner / 3rd party / the Creditor viz. LICHFL had not taken steps to implead itself, as a party/Respondent to the Liquidation . As such, it is not open to LICHFL to seek an impleadment in the main Appeal proceedings because of the fact that they had failed to take adequate and appropriate steps, before the Adjudicating Authority/Tribunal in not seeking itself to get impleaded. 15. In regard to the plea of the Petitioner/3rd Party in IA 57/2024 in Comp. App. (AT)(CH)(Ins.) No. 446 of 2023 that the impugned order itself and the same being a court constituted committee to make certain recommendations, is of no consequence to these proceedings. Therefore, the committee itself does not seek to become a party but merely the applicant/creditor hearing and in fact, the aspect of special committee pleas are of no relevance to decide the question as to whether the Petitioner/3rd Party is a necessary or a proper party under Law. 16. The Learned Counsel for the 1st Respondent / Appellant submits that in fact, a proposal was made, which came to be rejected by the Petitioner/ LICHFL in the concerned Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal incidentally, when it passes an Order in a given proceedings, before it. 31. An Appellant/Plaintiff in a given legal proceeding is the dominus litis. He cannot be coerced to include a person as Party whom, he does not want to contest, unless it is a compulsion of Law. It must be borne in mind that a necessary party is one without whom no Order can be passed effectively, in a given case. A proper party is one in whose absence an effective order can be made, but whose presence is necessary for a complete and final decision on the questions, involved in a given Proceeding. Further, a mere interest of a Party in the fruits of a litigation, cannot be a yardstick/test for his being impleaded as a Party. 20. The Learned Counsel for the 1st Respondent/Appellant cites the order dated 22.05.2020 in Union of India, Ministry of Corporate Affairs, New Delhi v. Oriental Bank of Commerce, Gurgaon (vide Comp. App. (AT)(Ins.) 1417 of 2019) wherein at paragraph 14 and 15 it is observed as under:- 14. A necessary party is a person who ought to have been arrayed as a party and in whose absence no effective order can be passed by a Court a Law/Tribunal/Appropriate Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not a person in favour of or against whom the decree is to be made, as per decision in Mumbai International Airport Pvt Ltd V. Regency Convention Centre and Hotels Pvt Ltd, AIR 2010 SC 3109. 25. At this juncture, a person who is not a eo nomine , a party to a reference, to an Arbitration, cannot be impleaded in proceedings , to set aside an Award , made by the Arbitrators , as per decision in Muhamad Kasim Rowther v. Noor Muhamad reported in 1958 1 MLJ at pg. 94. 26. Also, that if a person is not found to be a proper or a necessary party, the court , does not have jurisdiction to order his impleadment against the wishes of the Plaintiff . Status Report of 2nd Respondent/Liquidator 27. The 2nd Respondent/Liquidator of JBM Homes Pvt Ltd and JBM Sheltors Pvt Ltd has pointed out in his Status Report that the Original Deeds/Documents that were executed by the Corporate Debtor , with the land owners, in relation to advances, made as per the Books of Accounts have not been handed over to the Liquidator, by the Resolution Professional/Promoters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Proposed 3rd Respondent is just a Creditor and being a part of the Stakeholders Consultative Committee . More importantly, the Special Committee formed by the Adjudicating Authority/Tribunal , is to make certain Recommendations and when the fact of the matter is, that the Committee itself has not sought for an impleadment in the instant Appeal as one of the parties, then the Petitioner/Creditor cannot be a party to the underlying proceedings . 34. As far as the present case is concerned, even though the Petitioner/3rd Party/Proposed third Respondent has come out with a categorical plea that it is a major stakeholder in the Corporate Insolvency Resolution Process and Liquidation process with 90.05% voting right in CoC and 95.39% voting right in SCC and despite the fact that the Liquidation order came to be passed based on the Action plan submitted by it, (Petitioner), this Tribunal is of the considered view that just because the Petitioner being Creditor, it cannot be arrayed as proposed 3rd Respondent in main Appeal . 35. Furthermore, the Adjudicating Authority / Tribunal constituted Committee to make recommendations is of no relevance to the q ..... X X X X Extracts X X X X X X X X Extracts X X X X
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