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TMI Blog2025 (1) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Udit Narain Singh Malpharia vs. Additional Member Board of Revenue, Bihar and Anr. [ 1962 (10) TMI 55 - SUPREME COURT ] has laid down that a necessary party is one without whom no order can be made effectively; and 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 question involved in the proceeding. Even if, the ED was not necessary party in the Appeal filed by the SRA, it would have been appropriate that ED was also heard while deciding the issue, which was raised in the Appeal. ED also needs to be heard before deciding the Appeal finally, which has the effect, not only on the issues raised in the Appeal, but has larger ramification. Conclusion - The principles of natural justice require that all proper parties be heard before a decision affecting their rights is made. The judgment dated 13.08.2024 was recalled to allow the ED to be heard. The recall does not affect the approval of the Resolution Plan but is limited to the issue of property attachment by the ED. Application allowed. - [ Justice Ashok Bhushan ] Chairperson , [ Barun Mitra ] Member ( Technical ) And [ Arun Baroka ] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um and substance, the SRA/ CD would be entitled to no other relief/ concession/waiver except those, which are available to it as per the provisions of Section 31(1) and 32A of IBC, 2016. Nevertheless, the properties which are already attached by ED, under PMLA would not be released and it would be for the SRA to resort to the appropriate proceedings to seek remedy in this regard. In any case, the changed management covered under Sec. 32A(l)(a) (2)(i) of IBC, 2016, would not be entitled for any criminal consequences for the offences committed by the ex-management of the CD prior to commencement of the CIRP. It is also noticed that though in the certificate furnished by the RP in Form-H prescribed under Regulation 39(4) of IBBI (CIRP) Regulations, 2016, as also in the Affidavit filed by him, the RP has authenticated that the SRA does not suffer any ineligibility under Sec. 29A of IBC, 2016, but in terms of provisions of Sec. 30(1) of the Code, a Resolution Applicant should submit the Resolution Plan along with an affidavit stating that he is eligible under Sec. 29A to submit a Resolution Plan, to the Resolution Applicant. We could not find any such affidavit filed by SRA on record. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants. (iv) The Appeal came to be considered by this Tribunal and by the impugned judgment dated 13.08.2024, this Tribunal allowed the Appeal. The operative portion of the order dated 13.08.2024 is as follows: 23. In result, we allow the Appeal, set aside the findings recorded in the impugned order in paragraph 60 and observations made in the judgment, denying the benefit of Section 32-A to the SRA. The SRA is entitled to relief of extension of benefit of protection of Section 32-A to lift the attachment by Enforcement Directorate over the assets of the Corporate Debtor. We allow the reliefs as prayed in the Appeal and set aside the findings in paragraph 60 of the judgment and the observations in the judgment, denying the protection of Section 32-A of the IBC. The Appeal is allowed accordingly. There shall be no order as to costs. The present Application has been filed by the ED praying for recall of the above order. 3. We have heard Shri Zoheb Hossain, learned Counsel appearing for the Applicant; Shri Arun Kathpalia, learned Senior Counsel appearing for the Appellant; and Shri Krishnendu Dutta, learned Senior Counsel appearing for the RP. 4. Shri Zoheb Hossain, learned Senior Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by this Tribunal dated 13.08.2024 is in accordance with law and this Tribunal has rightly relied on the judgment of Delhi High Court in Shiv Charan s case. Further, this Tribunal has relied on the judgment of the Hon ble Supreme Court in Manish Kumar vs. Union of India and Anr. (2021) 5 SCC 1. The Applicant was not required to be heard while deciding this Appeal. Hence, no grounds have been made out to recall order dated 13.08.2024. It is submitted that SRA was entitled for the benefit of Section 32-A of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as the IBC ), which is statutory provision and the judgment of this Tribunal accepting the applicability of Section 32-A to the SRA is in accordance with statutory provisions of law as declared. It is submitted that insofar as Civil Appeal No.9692 9693 of 2024 filed by ED, the Hon ble Supreme Court has adjourned the matter noticing that two wings of the Government of India are trying to resolve the issue. 6. Shri Krishnendu Datta, learned Senior Counsel appearing for the RP, also supported the submission of the Appellant and contends that no grounds have been made out by the Applicant to recall order dated 13.08.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a through Ministry of Finance and Ministry of Corporate Affairs as added respondents Amended cause title to be filed within a period of one week from today. The name of respondent No.4-adjudicating authority is deleted from the array of parties. Mr. Ravi Raghunath, the learned counsel accepts notice on behalf of respondent Nos.1 to 3. List for hearing on 16th October, 2024 in the first five matters. In the meanwhile, the order of attachment dated 14th February, 2019 will continue to operate. Needless to add that the contempt petition before the High Court will not proceed. The parties are free to file the brief submissions in writing one week before the next date. 11. The Hon ble Supreme Court in the Shiv Charan s case granted leave and further directed the Appellant/Applicant to implead Union of India through Ministry of Finance and Ministry of Corporate Affairs to decide the issues and also granted an interim order that order of attachment will continue to operate. Although, the judgment of this Tribunal was delivered on 13.08.2024, but the order dated 12.08.2024, could not be placed before this Tribunal, so that Tribunal be informed that issues are being considered by the Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such a parry or such a party may suo motu approach the court for being impleaded therein. 14. This Tribunal in Company Appeal (AT) (Ins.) No.1417 of 2019 Union of India vs. Oriental Bank of Commerce decided on 22.05.2010 had also occasion to consider as to who is the necessary party and who may be proper party. In paragraph 14 of the judgment, following has been laid down : 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 of Law/ Tribunal/ Appropriate Authority. A proper party is a party who although not a necessary party is a person whose presence will enable the Authority to effectively, efficaciously, comprehensively and adequately adjudicate upon all the controversies centering around a given case. 15. Even if, the ED was not necessary party in the Appeal filed by the SRA, it would have been appropriate that ED was also heard while deciding the issue, which was raised in the Appeal. We, thus, are of the view that ED also needs to be heard before deciding the Appeal finally, which has the effect, not only on the issues raised in the Appeal, but has larger ramification. 16. We, thus, are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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