9911796707
TMI Blog2019 (6) TMI 1457X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant in Civil Application and the nature of disputed involved and the direction that the Court proposes to give, it would be appropriate to take up the Civil Application as well as main matter for final disposal. 2. The petition is filed seeking direction to NCLT C/SCA/10629/2019 ORDER to hear application of the petitioner on urgent basis or atleast before meeting of COC which is scheduled on 21.06.2019. The case in short of the petitioner is that the petitioner who is Time Sharing Member of the corporate debtor was initially treated as a class and financial creditor with total claim of Rs. 82,28,68,000/- with voting share at 5.90% by the IPR in its first report to COC dated 29.05.2019. Thereafter, Time Sharing Members as a class wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Gupta & Ors., reported in 2018 SCC Online, SC, 1733. It is submitted that the Court should not interfere in the ongoing process of resolution as the judgment of the Apex Court has held that the resolution process has to follow strict time line specified by the Apex Court and therefore, any interference by this Court would obviously cause delay in following this time line. During the course of submissions, learned Advocate for the respondent produced for perusal of this Court minutes of the first meeting of COC held on 29.05.2019. 5.1 It is submitted that the petitioner who is a Time Sharing Member cannot be equated with financial creditors as he would not fall in the definition and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self. Till such time they shall not be part of COC nor any voting right shall be given to these creditors. * The Interim Resolution professional offered the file of claims of these financial creditors and the legal opinions obtained from first advocate (Mr.Pravin Godiawala) for perusal of members of committee of creditors. COC members discussed upon each such creditor and some of them differed from each other and also opinion given by first advocate." 7. When the IRP has considered petitioner as financial creditor, it was obligatory for the IRP to invite representation of the Time Sharing Members to the first meeting of COC, which from the minutes does not appear to have been done and with one opinion of the Advocate to consider Time Sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le their claim as operational creditors;" 8. The judgment of the Apex Court, to which attention is drawn by the respondent to contend non- maintainability of the petition on the ground that powers lie with NCLT or NCALT, para-86 of that judgment reads as under:- "86. If, on the other hand, a resolution plan has been approved by the Committee of Creditors, and has passed muster before the Adjudicating Authority, this determination can be challenged before the Appellate Authority under Section 61, and may further be challenged before the Supreme Court under Section 62, if there is a question of law arising out of such order, within the time specified in Section 62. Section 64 also makes it clear that the timelines that are to be adhered to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portunity of hearing to the petitioner, cannot suo motu treat them as corporate creditors to take away whatever right is available to them in their capacity as financial creditors. This issue which precisely is to be decided by the NCLT in the application filed by the petitioner. This Court is therefore of the opinion that the COC meeting cannot be permitted to be proceeded unless petitioner is given a fair chance to get his grievance adjudicated by the NCLT. 10. With a view to meet with time line as prescribed by the Apex Court and at the same time, balance rights of the petitioner, it is appropriate to direct the petitioner to complete formalities in connection with application under Section 60 of the Code being CP No.(IB) 127/NCLT/AHM/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
