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TMI Blog2024 (8) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... be condemned without hearing, therefore, the impugned order deserves to be set aside and be remanded back to take a decision on the application in accordance with law after hearing both the parties and passing a speaking order - the present appeal is allowed and the impugned order is set aside - petition is hereby restored and the matter is remanded back to the Tribunal. Application under Section 60(5), 65 and 75 of the Code has been dismissed on the ground that the application has been filed before the admission of the application filed under Section 7 of the Code - At what stage the application under Section 65 is maintainable? - HELD THAT:- The answer of this question is not farfetched because of the decisions in the cases of Beacon Tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order is restored and the matter is remanded back to the Tribunal to decide the aforesaid application in accordance with law. - [ Justice Rakesh Kumar Jain ] Member ( Judicial ) , [ Mr. Naresh Salecha ] Member ( Technical ) And [ Mr. Indevar Pandey ] Member ( Technical ) For the Appellants : Mr. Sumesh Dhawan , Vatsala Kak , Raghav Dembla , Adv For the Respondent : Mr. Ankur Mahindra , Adv For the Appellants : Mr. Dhruv Gupta , Adv For the Respondent : Mr. Sumesh Dhawan , Vatsala Kak , Raghav Dembla , Adv. for R2 to 7 Mr. Ankur Mahindra , Adv ORDER Per : Justice Rakesh Kumar Jain ( Oral ) Comp. App. ( AT ) ( Ins ) No. 1406 of 2023 This appeal is directed against the order dated 29.08.2023 by which an application filed under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 60(5), 65 and 75 of the Code has been dismissed on the ground that the application has been filed before the admission of the application filed under Section 7 of the Code. 2. Counsel for the Appellant has submitted that the Tribunal has committed a patent error in dismissing the application only on the ground that it has been filed before the admission of application under Section 7 which is contrary to the law laid down by the Hon ble Supreme Court and this Court in various judgments. 3. In this regard, he has relied upon a decision of the Hon ble Supreme Court rendered in the case of Beacon Trusteeship Limited Vs. Earthcon Infracon Pvt. Ltd. Anr., 2020 SCC OnLine SC 1233 and referred to Paras 7 and 8 which read as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be maintainable only after the admission of such an application? 13. As a matter of fact, the Learned Tribunal has taken a decision, while interpreting Section 65 of the Code, that the application under Section 65 of the Code would be maintainable only once the application under Section 7, 9 or 10 is admitted and the CIRP is initiated. However, in our considered opinion the view taken by the Learned Tribunal is totally erroneous as it has not looked into the basic provisions much less the definitions provided under Section 5(11) and 5(12) of the Code and has been unnecessarily influenced with the word initiates used under Section 65 to observe that it would mean that when the CIRP is initiated i.e. after the admission. 14. In this res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itting the Application in order to prevent taking undue benefit of provisions of IBC to detriment of the rights of legitimate creditors as well as to protect the Corporate Debtor from being dragged into CIRP with malafide. Section 65 provides that if any person initiates the Insolvency Resolution Process or liquidation proceedings fraudulently or with malicious intend for any purpose other than for resolution of Insolvency or Liquidation, the Adjudicating Authority may impose upon such person a penalty. Section 65 provides that where any person furnishes any information under Section 7, which is false in material particulars, knowing it to be false or omits any material facts, knowing it to be material such person shall be punished with fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application by the Tribunal only on this ground that the application has been filed before the admission of the application under Section 7 is not sustainable. 13. Accordingly, the appeal is allowed and the impugned order is set aside. The application bearing 1120 of 2022 dismissed by the impugned order is restored and the matter is remanded back to the Tribunal to decide the aforesaid application in accordance with law. At this stage, Mr. Sumesh Dhawan, Counsel for the Respondent (FC) has also raised an objection about the locus of the intervenor and submitted that the same may be kept open before the Tribunal to decide the same. We order accordingly. However, it is made clear that while deciding this appeal, we have not entered upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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