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TMI Blog2023 (1) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to as "The Adjudicating Authority") dismissing I.A. No. 156 of 2019 filed by the Appellant. 2. Brief facts of the case necessary to be noticed for deciding this Appeal are:- (i) The Corporate Debtor-Asian Natural Resources (India) Limited (formerly Bhatia International Limited) is undergoing Liquidation pursuant to the Order passed by the Adjudicating Authority dated 06.11.2017. (ii) The Appellant herein is an Operational Creditor in the Insolvency Proceedings against the Corporate Debtor. (iii)The Adjudicating Authority in I.A. No. 230 of 2017 vide Order dated 06.11.2017 filed by the Appellant issued various directions including holding that Appellant has right to participate in the proceedings. It was further held that Appellant is entitled to place the relevant materials in respect of allegations made by it against the Corporate Debtor before the Interim Resolution Professional and Resolution Professional. Liberty was also given to the Appellant to approach the Adjudicating Authority. In pursuance of the Order dated 06.11.2017 passed in I.A. No. 230 of 2017, Appellant made several request to the Liquidator to take appropriate action. The Appellant hereinafter fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abu Dhabi, UAE. It is further directed that the applicant shall produce order of this Bench at the Indian Embassy at Abu Dhabi, UAE. 20. Accordingly, the application is allowed with the above directions." (viii) The Appellant after passing of the Order dated 14.02.2019 filed I.A. No. 156 of 2019 under Section 66(5)(c), Rule 11 of NCLT Rules, 2016 and Section 422 and 424 of the Companies Act praying for clarifications. Prayers made in the Application (I.A. No. 156 of 2019) are as follows: "a) Pending the final haring and disposal of IA 386 of 2018 (challenging the locus of the Application to file IA 287 OF 2018) that this Hon'ble Tribunal be pleased to pass an order of clarifying that its observations in paragraphs 14,17 and 18 its order dated 14th February, 2019 in IA 85 of 2019 are only prima facie observations and can be revisited whilst IA 386 OF 2018 (challenging the locus of the Application to file IA 287 of 2018) is being considered; b) Pending the final hearing and disposal of IA 386 of 2018 (challenging the locus of the Application to file IA 287 of 2018) that this Hon'ble Tribunal be pleased to expunge its obserbations in paragraphs 14,17 and 18 its order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent Nos. 2 to 5 opposing the prayer of the Appellant submits that I.A. No. 156 of 2019 was in fact for review of Order dated 14.02.2019 which jurisdiction is not vested with the Adjudicating Authority. The Adjudicating Authority has rightly held that IA for clarification is not maintainable. The Adjudicating Authority does not have power to review and Appellant cannot be allowed to do something indirectly which is prohibited in law. It is further submitted that Appellant has no any right or any locus to file I.A. No. 287 of 2018. 7. We have heard Learned Counsel for the parties and have perused the record. 8. The order impugned in this Appeal is passed in I.A. No. 156 of 2019 filed by the Appellant by which Application certain clarifications and directions were sought in reference to Order dated 14.02.2019 passed in I.A. No. 85 of 2019 as noted above. In I.A. No. 287 of 2018 filed by the Appellant, the Adjudicating Authority passed an Interim Order which is to the following effect: "On perusal of the prayer in the application, it is seen that there is no such prayer for seeking restrain order against respondent no. 2 to 5 except seeking direction to deposit their pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rational creditor and if at all, he has any claim against the suspended management of the Company BIL which is under liquidation, the respondent is supposed to put his claim/grievances before the Liquidator. Before proceeding further, it is expedient to go through the section 60(5)(c), 66 and 67 of the IBC under which IA 287 of 2018 is filed. Section 60(6)(c), 66 and 67 of IBC is reproduced hereunder: Section 60(5)(c): (5) "Notwithstanding anything to the contrary contained in any other law for the time being in force, the National Company Law Tribunal shall have jurisdiction to entertain or dispose of- (a) xxxxxxxxxxxxxxxxxxxxxxxx (b) xxxxxxxxxxxxxxxxxxxxxxxx (c) any question of priorities or any question of law or facts, arising out of or in relation to the insolvency resolution or liquidation proceedings of the corporate debtor or corporate person under this Code." "Section 66: Fraudulent trading or wrongful trading. 66. (1) If during the corporate insolvency resolution process or a liquidation process, it is found that any business of the corporate debtor has been carried on with intent to defraud creditors of the corporate debtor or for any fraudulent p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ets, properties, effects and the actionable claims of the corporate debtor. For the sake of brevity, Section 35 is reproduced below: "Section 35: Powers and duties of liquidator. 35. (1) Subject to the directions of the Adjudicating Authority, the liquidator shall have the following powers and duties, namely:- (a) to verify claims of all the creditors; (b) to take into his custody or control all the assets, property, effects and actionable claims of the corporate debtor; (c) to evaluate the assets and property of the corporate debtor in the manner as may be specified by the Board and prepare a report; (d) to take such measures to protect and preserve the assets and properties of the corporate debtor as he considers necessary; (e) to carry on the business of the corporate debtor for its beneficial liquidation as he considers necessary; (f) subject to section 52, to sell the immovable and movable property and actionable claims of the corporate debtor in liquidation by public auction or private contract, with power to transfer such property to any person or body corporate, or to sell the same in parcels in such manner as may be specified; (g) to draw, accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liefs and without adverting to the said application and without giving opportunity to the Appellant on the said application it was not open for the Adjudicating Authority to make observations as noted above. When an Application is not listed before the Court nor the Adjudicating Authority heard the parties on the said application, any observations made in reference to the said application is bound to prejudice the rights of the Applicant. 13. As noted above, I.A. No. 85 of 2019 was decided on 14.02.2019 where Respondent-Surinder Singh Bhaita was seeking leave of the Court to travel Abu Dhabi, which was allowed. The observations made in the Impugned Order by the Adjudicating Authority that Appellant was not entitled to pray for review or clarification, also does not merit acceptance. The Appellant was not seeking review of the Order dated 14.02.2019 since the operative portion of the order allowing I.A. No. 85 of 2019 was not even questioned or challenged, what was sought to be clarified was the adverse observations made with regard to the locus of the Appellant in I.A. No. 278 of 2018. 14. The question as to whether the Appellant has locus to file I.A. No. 287 of 2019 and whether ..... X X X X Extracts X X X X X X X X Extracts X X X X
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