9911796707
TMI Blog2023 (11) TMI 968X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the list of Creditors of the Corporate Debtor. By the Impugned Order, the Adjudicating Authority has dismissed the Application observing as follows: "19. A holistic reading of the order of Hon'ble NCLAT, gives no room to contend that, as the Hon'ble NCLAT has itself recorded that "there is a dispute as to whether the applicant comes within the meaning of financial creditor or not" the issue as to the status of the applicant as financial creditor has not attained finality, especially when Hon'ble NCLAT, in unequivocal terms held that, the impugned order dated 4th October, 2018, where-under the applicant's status as Financial Creditor has been confirmed and was ordered to be included as Member of CoC, has been upheld, is liable to be set aside and accordingly set aside the said order. 20. Therefore, in the light of our discussion as above, we are unable find any substance in the submission of the Ld. Sr. Counsel that, Hon'ble NCLAT did not render a conclusive finding on the aspect whether or not the applicant is a financial creditor or on inclusion of the applicant in the list of creditors of the corporate debtor. 21. That apart, the below stated factua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctronic form. It is submitted that on 11/07/2018, the Erstwhile RP had sent a Notice to the Appellant for attending the 5th CoC Meeting scheduled on 16/07/2018. On 19/07/2018, the Erstwhile RP published another list of reconstituted CoC, wherein the admitted Claim amount was Rs. 395,95,77,035/-. The reconstituted CoC was challenged by ARCIL in C.A. 250/2018, which was dismissed by the Adjudicating Authority, vide Order dated 04/10/2018. On 24/11/2018, the Erstwhile RP published a list of Creditors, which included the name of the Appellant under the head of Financial Creditors admitting a Claim amount of Rs. 318,67,44,770/-. While so, ARCIL challenged the dismissal Order dated 04/10/2018, in an Appeal C.A. (AT) No. 633/2018, which was allowed by NCLAT on 18/11/2019, observing as follows: "9. From the discussions as made above, while we hold that there is a dispute as to whether Mahal Hotel Private Limited comes within the meaning of 'Financial Creditor' or not, we hold that after constitution of the 'Committee of Creditors', without its permission, the 'Resolution Professional' was not competent to entertain more applications after three months to include one or ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns) No. 633/2018, on the ground that the Appellant is not a Financial Creditor. 7. The Appellant had wrongly chosen to reinitiate an entire set of proceedings on the same issue and therefore, the proceeding is barred by the principle of Res Judicata. The Learned Counsel for the Respondent placed reliance on the Judgment of the Hon'ble Supreme Court in the matter of 'Satyadhyan Ghosal Vs. Deorajin Debi' reported in [(1960) 3 SCR 590] in support of his case that the present Appeal is hit by the principle of Res Judicata. The relevant para is extracted as hereunder: "7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter -- whether on a question of fact or a question of law -- has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11, which was forfeited by the Corporate Debtor as far back as in 2013 on account of Mahal Hotel Private Limited's liability to perform the part of Business Transfer Agreement. Therefore, according to the Appellant - ARCIL, apart from forfeiture of the debt amount, the amount received under Business Transfer Agreement do not come within the meaning of Financial Debt and therefore, Mahal Hotels Private Limited could not have been included as Financial Creditor. .... 6. Initially, the Mahal Hotel Private Limited, who is also Appellant in CA(AT)(INS) 718/2018 contested the appeal preferred by ARCIL. It was submitted that the Adjudicating Authority (National Company Law Tribunal) Hyderabad bench by its earlier order dated 11th July 2019 set-aside the report of Enforcement Directorate on an application moved by ARCIL. According to the learned counsel for Mahal Hotel Private Limited, if an investigation commences by Enforcement Directorate and is in progress but not concluded, under PMLA on a transaction that forms the basis of the admitted claim of a financial creditor under the IBC, it does not necessarily follow that the said claim must be set-aside by the National Company Law App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 'further, once a decision was taken by the Committee of Creditors to call for a Meeting for removal of Mr. Koteswara Rao Karuchola as RP, it was improper for him to include Mahal Hotel Pvt. Ltd. as Financial Creditor of the Member of the Committee of Creditors. Further, money laundering case having been initiated against Mahal Hotel Pvt. Ltd., the said Hotel cannot be allowed to be Member of Committee of Creditors'. It was also observed in paras 11 and 12 that the Adjudicating Authority had failed to notice the aforesaid facts and circumstances and without going into the question of delay in inclusion of Mahal Hotel Pvt. Ltd. as Financial Creditor, has decided the Claim and this Tribunal has set aside the Order dated 04/10/2018, whereby the Adjudicating Authority has directed the RP to revise the Claim submitted by Mahal Hotel Pvt. Ltd.. Therefore, it is crystal clear that the Order of this Tribunal dated 18/11/2019 has set aside the finding of the Adjudicating Authority revising the Claim of the Appellant herein without granting any liberty to once again approach the Adjudicating Authority for adjudication of its Claim. As this Tribunal had examined whether the Appellant is a F ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
