TMI Blog2022 (11) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... he stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The question which needs to be considered in this Application is that how the day-to-day functioning of the Tea Gardens may be carried on when IRP is not entitled to discharge any function and the Corporate Debtor also cannot be restored as it was functioning prior to 28.10.2022. There are wages to be paid to the workers, Ration is also to be distributed by the Company to its workers, there are electricity dues and some other necessary expenses. The workers of the Corporate Debtor and its functioning can not be made to suffer in the facts of the present case - for the purposes of payment of wages to the workers and distribution of ration, payment of electricity dues and other necessary expenses, ways and means have to be found out so that Corpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that there is urgency in the matter. However, to give opportunity to the Respondent Bank we adjourn this Appeal to 07.11.2022. Till the next date the IRP may not constitute the COC. Indian Bank is permitted to file Intervention Application. Learned counsel for the UCO Bank submits that OTS proposal has already been received and it is under consideration and time of few weeks shall be required to consider the OTS proposal. Learned counsel appearing for the Indian Bank submits that Indian Bank has already filed application for intervention which may also be permitted to be listed along with this Appeal. It is submitted that there is some defects in the Intervention Application. Defects may be cured by the applicant and I.A. may also be listed along with this Appeal on the next date. List this Appeal on 10.01.2023. In the meantime, impugned order shall remain stayed. 3. I.A. No. 4291 of 2022 has been filed by the Appellant making following prayers: (a) all directions given in para 8.14 (a) to (j) of the impugned order dated October 28, 2022 passed by the Ld. Adjudicating Authority, Kolkata Bench in Company Petition (IB) No. 1382(KB) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the parties. 7. Learned Counsel for the Appellant submits that in view of the Interim Order passed by this Tribunal on 07.11.2022, the IRP is not entitled to carry on any function qua the Corporate Debtor. It is submitted that the Corporate Debtor has been managing Tea Garden where large number of workers are working who have to be paid their wages weekly. Ration is also required to be paid to the workers apart from other necessary expenses like Electricity, Diesel, etc. After the Order dated 07.11.2022 staying the Corporate Insolvency Resolution Process (CIRP in short), it is submitted that no payments have been received by the workers causing a serious law and order problem. It is submitted that Appellant has already approached the UCO Bank for Settlement who is considering the prayer of the Appellant for Settlement. A strategic investor namely M/s. Lemon Grass Organic Tea Limited has entered into Agreement with Corporate Debtor to take over three Tea Gardens which are charged with the UCO Bank subject to entering into and funding the OTS. Learned Counsel submits that IRP has no role to play after the Interim Order dated 07.11.2022 has been passed and the Corporate Debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no proceedings under the Act were pending either before the Board or before the Appellate Authority on February 21, 1991 when the Delhi High Court passed the interim order staying the operation of the Appellate Authority dated January 7, 1991. The said stay order of the High Court cannot have the effect of reviving the proceedings which had been disposed of by the Appellate Authority by its order dated January 7, 1991. While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order Quashing of an order result in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by Delhi High Court dated 21.02.1991 staying the operation of the order dated 07.01.1991 passed by the Appellate Authority? Does it mean that after the passing of the said order by the High Court, the proceedings under the Act should be treated as pending and, if so, before which authority? 15. The Hon ble Supreme Court referred to Shree Chamundi Mopeds Ltd. and laid down following in paragraph 13 of B.P.T Ltd. Ors. 13. In the case on hand the situation is entirely different. The Tribunal gets jurisdiction only on reference made by the Government. When the operation of the very order of reference was stayed the question of dispute pending before the Tribunal did not arise inasmuch as the reference order itself stood suspended. So long as stay order was operating it could not be said that the dispute was pending before the Tribunal. Admittedly, when workmen were dismissed from service stay order was operating. Learned single Judge as well as the Division Bench of the High Court have proceeded on wrong footing relying upon the decision of this Court in Shri Chamundi Mopeds Ltd. (supra), that the order of reference was not wiped out by virtue of staying of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding before any Tribunal since reference order was pre condition for initiating any proceeding before the Tribunal. No dispute was pending before the Tribunal since reference precedes dispute. 17. The ratio of the Judgment of this Tribunal in B.P.L. Ltd. Ors. (Supra) is the same as was laid down in the Judgement of Hon ble Supreme Court Shree Chamundi Mopeds Ltd. (supra) which has been followed by the Hon ble Supreme Court. The above judgement in no manner helps the Appellant in the present case since present is a case where Order of Admission of CIRP under Section 7 has been stayed by this Tribunal. Proceeding under Section 7 were initiated before the Adjudicating Authority in which final order was passed. Factual matrix of the present case is clearly different from those which was considered in B.P.L. Ltd. Ors (supra). 18. The difference between stay of an Order and quashing of any Order are well settled as noticed above. In event on the stay of the admission of Section 7 Application, the Corporate Debtor is allowed to function and position as was existing prior to 28.10.2022 is restored, there shall be no difference in staying an Order and quashing of an Order. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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