TMI Blog2023 (1) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... icating Authority may pass appropriate orders in CP (IB) No. 04/KB/2019 in accordance with law expeditiously. Keeping in view that the matter is pending before the Adjudicating Authority since 2019, the parties are at liberty to raise all the relevant issues both in fact and in law before the Adjudicating Authority. - Company Appeal ( AT ) ( Ins.) No. 339 of 2021 - - - Dated:- 11-1-2023 - [ Justice Anant Bijay Singh ] Member ( Judicial ) And [ Ms. Shreesha Merla ] Member ( Technical ) For the Appellant : Mr. Sudhir Makkar, Sr. Advocate with Ms. Sadapurna Mukherjee, Advocate For the Respondent : Mr. Abhijeet Sinha, Mr. Utsav Mukherjee, Mr. Jaiveer Kant, Mr. Hardik Khatri, Advocates for R-1. Mr. Tanmay Mehta, Mr. K. Singh, Advocates JUDGMENT Justice Anant Bijay Singh; The present Appeal has been filed by the Appellant under Section 61 of the Insolvency and Bankruptcy Code, 2016 (for short IBC) being aggrieved and dissatisfied by the order dated 02.02.2021 passed by the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Kolkata) in RST. A. No. 842/KB/2020 in CP (IB) No. 04/KB/2019, whereby and whereunder the application i.e. RST. A. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Appeal along with written submissions submitted that the impugned order was passed by the Adjudicating Authority without joining all necessary and proper parties without disclosing the true and correct facts and is vitiated by fraud. Further, the fact that there was an agreement to assign the debt of Howrah Jute Mill Limited between Abhinandan Holding (NBFC) and JM Finance (ARC) dated 15.01.2020 makes Abhinandan Holding a necessary party but despite the same it has not been made a party by JM Finance before the Adjudicating Authority when the main prayer is against Abhinandan Holding (AHPL). The Adjudicating Authority failed to appreciate that the third-party rights will be affected and it is not possible to hold default against the said intending assignee/AHPL/third party without making the said assignee/AHPL to be a party to the restoration application and to be heard before the passing any final order holding against the said assignee/AHPL by holding that there is default committed by the said assignee/AHPL. The impugned order is contrary to the principles of natural justice and is liable to be set aside at the very threshold. 4. It is further submitted that the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement. Under the said agreement to assign which was entered into between AHPL and Respondent herein, AHPL had undertaken to take over the financial assets of the Appellant from the Respondent. The particulars of the financial assets have been mentioned in Schedule-I of the said agreement which includes creation of charge over fixed assets of the Appellant and all the piece and parcel of land containing by estimation an area of 95 Bighas, 1 Kottah, 1 Chittack, 20 Square Feet (more or less), situated in Mouja, Bage Shibpur and partly, Mouja, Ramkrishnapur, PO and PS Shibpur, forming municipal holding number 493/C/A and 493/C/B G.T. Road, Howrah. In addition to the above, inter alia, charge over the plant and machinery and fixed assets of the Respondent lying at the property has to be assigned in favour of the Respondent by AHPL in terms of the said agreement to assign dated 15th January, 2020 which was suppressed by the Respondent before the Adjudicating Authority. The sum and substance of the said agreement which would be evident from a meaningful reading of all the terms is that AHPL and its management is to take over the Appellant Company once 25% (or more) payment in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o settle the alleged debt invoking the pre-pack scheme in light of the Judgment of the Hon'ble Supreme Court in 'Swiss Ribbons Vs. Union of India, 2019 SCC OnLine SC 7' wherein it held that the intent of the IBC to resolve and revive a corporate debtor and thereby significantly reinforces the efforts of the creditors and other stakeholders to achieve such end. The Assignee Abhinandan Holdings is willing to pay the balance amount of Rs. 18.51 crores to the Respondent No. 1 within 60 days as per its letter dated 12.10.2022. Further submitted that above submissions, the impugned order cannot be sustained, it is fit to be set aside and the Appeal be allowed. 9. From the perusal of the order dated 09.12.2021 passed by this Bench in I.A. No. 2752 of 2021 wherein this Bench after taking note of the fact submitted by Ld. Counsel for the Appellant that the Assignee 'Abhinandan Holdings Private Limited' moved before the Commercial Court and obtained injunction order in the Court of Neyaz Alam, Judge, Commercial Court at Rajarhat, North 24 Parganas vide order dated 29.09.2021 in [T.S.-22/21 (CC) (CNR No. WBNP19-000000-2021) J.O: WB01398], therefore, proceeding before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e affected and it is not possible to hold default against the said intending assignee/AHPL/third party without making the said assignee/AHPL to be a party to the restoration application and to be heard before passing any final order holding against the said assignee/AHPL by holding that there is default committed by the said assignee/AHPL. The Respondent has fraudulently suppressed material facts in an attempt to pollute the pure steam of justice and unless the proceedings before the Adjudicating Authority and immediately stayed it will amount to abuse of the process of law since the party against whom the order is passed was not made a party to the impugned proceedings and accordingly could not place material documents on record imperative for adjudication of the revival application. 12. It is further submitted that AHPL is now willing to pay the balance debt of Rs. 18.5 crores within 6 weeks to Respondent No. 1 as per letter dated 12.10.2022, thus it is requested that the settlement be allowed between parties invoking inherent powers in terms of Rule 11 of the NCLAT Rules, 2016 and the judgment of this Tribunal in 'Kanoria Sugar and General Manufacturing Company Ltd. Vs. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dice. 15. It is further submitted that a third party is not a necessary party during the stage of admission of a Section 7 application and there was no necessity to arraign Respondent No. 2 as a necessary party before the Adjudicating Authority. The Appellant has sought to manufacture a picture before this Tribunal that while passing the impugned order, the Adjudicating Authority did not here the Respondent No. 2 regarding the failure of the settlement and hence the impugned order is patently illegal and erroneous. In this regard, the Appellant has no locus standi to make submissions about the necessity of making the Respondent No. 2 a party before the Adjudicating Authority as it is well settled by a judgment of this Tribunal in the case of Vekas Kumar Garg Vs. DMI Finance Pvt. Ltd. Anr., Company Appeal (AT) (Insolvency) No. 113 of 2021 that in an application under Section 7 of the IBC the Financial Creditor and the Corporate Debtor alone are the necessary parties and no third-party intervention is contemplated at the admission stage. 16. It is further submitted that the Respondent No. 2 and the Appellant both were very well aware of the restoration application, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the restoration application. The orders by way of which the effect of the letter of revocation got stayed were ex-parte ad interim orders and were passed without even issuing notice to Respondent NO. 1 by the Civil Court/Commercial Court had no jurisdiction to entertain such suits when the Restoration Application was already pending adjudication before the Adjudicating Authority. Since the Restoration Application dealt with the revival of an application for instituting the CIRP the sole jurisdiction to entertain any objections with respect to the same lies with the Adjudicating Authority. Furthermore, in view of Section 63, 64(2) and 238 of the Code, the Civil Court/Commercial Court did not have any jurisdiction to entertain the Title Suit, when the same was pending adjudicating before the Adjudicating Authority. The aforesaid actions of the Appellant and the Respondent No. 2 further indicate that the parties were acting in hand in glove with each other. 19. It is further submitted that the Respondent No. 2 on 12.10.2022 indicated that it would settle the matter with the Respondent No. 1 and make complete payments. The Respondent No. 2 vide its letter dated 06.07.2020 had e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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