2023 (1) TMI 110 - AT - Insolvency & Bankruptcy
Seeking Withdrawal of company appeal - Whether Applicant who has not filed any Appeal, can claim for setting aside the Order on the basis of Intervention Application? - HELD THAT:- The Order dated 08.10.2021 which has been challenged in the Company Appeal (AT) Ins. No. 880 of 2021 has been passed by the Adjudicating Authority on an Application filed under Section 60(5) of the Code. IBC provides for filing an Appeal against the Order passed by the Adjudicating Authority by virtue of Section 61(1) - Admittedly, no Appeal has been filed by the Applicant and filing of any Appeal by the Applicant at this stage shall stand barred by time.
Hon’ble Supreme Court in SARASWATI INDUSTRIAL SYNDICATE LTD. VERSUS COMMISSIONER OF INCOME-TAX [1999 (3) TMI 3 - SUPREME COURT] has categorically held that only purpose for granting an Intervention Application is entitled to intervene in support of one or other side.
The intervener is well within its rights either to support the order dated 08.10.2021 or to oppose the said order. But when the Company Appeal (AT) Ins. No. 880 of 2021 which has been filed challenging the Order dated 08.10.2021 is sought to be withdrawn, there is no proceeding in which intervener can be heard in opposition of the Order dated 08.10.2021. Proceedings under the IBC are proceedings in a special statute with timeline where limitation prescribed under the Act is for a purpose - Order 23 which came for consideration before the High Court pertains to withdrawal of suit or amending part of claim, the restriction contained in Order 23 for withdrawal were for purpose of object and in the context of Order 23 of the CPC observations as noted above were made by the High Court. It was held that withdrawal cannot be as a matter of course and its Court’s discretion.
In the present case, Order dated 08.10.2021 has not been challenged by the SREI Equipment Finance Ltd. who has sought intervention. The judgment of the Hon’ble Supreme Court relied on by the Appellant do support the contention of the Appellant. Hon’ble Supreme Court has held that 3rd parties including interveners have their own remedies in law and they cannot insist upon their grievance being addressed in the appeals filed by the Appellants herein.
We are of the considered opinion that at the instance of intervener, the order passed by the Adjudicating Authority dated 08.10.2021 cannot be set aside. We although have permitted the applicant to intervene in the Appeal but are unable to grant any relief to intervention as prayed in the Application. We are thus of the view that prayer of the appellant –Indiabulls Housing Finance Ltd. to withdraw the Appeal is to be allowed and the Appeal is to be dismissed as withdrawn.
Appeal dismissed as withdrawn.