TMI Blog2023 (12) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... urt seeking certain directions and clarifications which application was directed by the Hon ble Supreme Court to be heard along with the hearing of the appeal which application is still pending and no order has been passed by the Hon ble Supreme Court. When the Appeal before the Hon ble Supreme Court filed by the Respondent No.1 is still pending, the Adjudicating Authority ought to have stayed his hands to issue any direction to hand over the management of the Corporate Debtor to the ex-management and the Adjudicating Authority ought to have relegated to parties to approach the Hon ble Supreme Court for any further order or direction. It is for the Resolution Professional to take decision in its wisdom as to how the Corporate Debtor should be allowed to continue as a going concern without taking any steps in the CIRP, in view of the interim order passed by the Hon ble Supreme Court dated 25.02.2022. Respondent No.1 virtually seeks his reinstatement of the post which is clear from the prayer made in IA No.4138-4139 of 2023 which has not been entertained in this Appeal and the Adjudicating Authority also ought to have stayed his hands from passing any order on the application file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide its Order dated 16.12.2021. Against the Order dated 16.12.2021, two Civil Appeals were filed in the Hon ble Supreme Court one by Shoboroi Ganguli and another by Narendra Kumar Navin Kumar Upadhyay (Respondent No. 1). In the civil Appeals filed against the Order dated 16.12.2021, Hon ble Supreme Court passed following interim Order on 25th February, 2022: UPON hearing the counsel the Court made the following ORDER Issue notice. There shall be stay of the following in the meanwhile: 1. Corporate Insolvency Resolution Process of the Respondent No.2; and 2. judgment and final order dated 16.12.2021 passed by the NCLAT in company Appeal (AT) (insolvency) No. 128/2021 4. The IRP Mr. Ranjeet Kumar Verma was removed and in his place Mr. Mukesh Kumar Jain (The Appellant herein) was appointed as RP. RP filed an I.A. No. 142419/2022 in Civil Appeal No. 2661 of 2022 seeking certain directions from the Hon ble Supreme Court. On 31st January, 2023, Resolution Professional issued a letter to Respondent No. 1 informing that contract of Respondent No. 1 expired on 31st May, 2022 and after taking over charge by the RP, RP has continued month to month upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l after the order dated 25.02.2022 passed by the Hon ble Supreme of India are without any authority since once the CIRP has been stayed the Resolution Professional could not have taken any further action. We, therefore, feel it appropriate to direct that all actions taken by the Resolution Professional after the stay order passed by the Supreme Court of India on 25.02.2022 are without any authority and unsustainable and therefore, we pass the following directions :- 1. The Resolution Professional shall immediately hand over the management of the Corporate Debtor to the CEO/Management of the CD. 2. All actions taken by the Resolution Professional after the order dated 25.02.2022 passed by the Hon ble Supreme Court of India including the removal of the Applicant and appointment of Mr. Vishal Bakshi are declared to be null and void. 3. Status, public position of the Corporate Debtor as it was before passing of the order dated 25.02.2022 by Hon ble Supreme Court of India shall be restored back. 3. In IA No.2043 of 2023 which was filed by the Respondent No.1, following prayers have been made:- (I) Allow the application of the Applicant and Quash the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant submits that against the order passed by this Appellate Tribunal dated 16.11.2023, Mr. Navin Kumar Upadhyay, the Respondent No.1 in both the Appeals has already filed Civil Appeal being Civil Appeal No.2662 of 2022 where interim order was passed by the Hon ble Supreme Court on 25.02.2022 which order is still continuing and after issuing the letter dated 31.01.2023 by Resolution Professional informing that his contract has expired on 31.05.2022 he having attained 60 years of age, he has been relieved w.e.f. 01.02.2023. Respondent No.1- Mr. Navin Kumar Upadhyay filed an application vide Diary No.6561 of 2023 bringing before the Hon ble Supreme Court the order dated 31.01.2023 regarding termination of service which application is still pending, hence, it is not open for the Respondent No.1 to file IA No.2403 of 2023 before the Tribunal. It is submitted that the Adjudicating Authority committed error in observing that in view of the stay of the CIRP, the Suspended Directors have to be reinstated relying on the law laid down by this Appellate Tribunal in Company Appeal (AT) (Insolvency) No.1323 of 2023- Ashok Kumar Tyagi vs. UCO Bank whereas no such proposition is laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relying on the interim order passed by the Hon ble Supreme Court dated 25.02.2022. An interim order was passed by this Appellate Tribunal in the present Appeals on 24.07.2023 wherein in paragraph 8 of the interim order following was observed:- 8. We are of further view that Adjudicating Authority ought not to have entertained the application when the matter is pending before the Hon'ble Supreme Court and was extensively heard by the Hon'ble Supreme Court on several dates. We are thus of the view that the direction issued by the Adjudicating Authority in paragraph 16(1) (3) deserves to be stayed and we direct that the directions in (1) (3) of paragraph-16 be remain stayed. 9. The Respondent No.1 has filed another application being IA No.4138- 4139 of 2023 in Company Appeal (AT) (Insolvency) No.930-931 of 2023 where following prayers have been made:- A. Set aside/quash the communication contained in the email dated 20.08.2023 issued by the Resolution Professional effectively removing the Applicant as the Executive Editor of the newspaper and appointing Ms. Shobori Ganguli as Executive Editor (Editor in chief) of newspaper run by Corporate Debtor vide emai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, Applicant has not been allowed to function after 31st January, 2023. Applicant has also approached the Hon ble Supreme Court by filing I.A. vide diary No. 65621 of 2023 bringing on record the letter dated 31st January, 2023 terminating his services and praying for initiating contempt proceedings against the RP in which no orders have been passed. 18. Learned Counsel for the Applicant has relied on the Order dated 24th July, 2023 passed by this Tribunal in the present Appeals and submits that this Tribunal has not stayed the direction No. 2 of the Adjudicating Authority dated 30th May, 2023 where all actions taken by the RP after Order dated 25.02.2022 including the removal of the Applicant were declared null and void. It is true that direction No. 2 was not stayed by this Tribunal in its Interim Order dated 24th July, 2023 but the Order passed by Adjudicating Authority dated 30th May, 2023 is under consideration in the Appeals and we have already observed in paragraph 8 of the Interim Order dated 24th July, 2023 that the Adjudicating Authority ought not to have entertained the Application (filed by Respondent No. 1) when the matter is pending before the Hon ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of India on 25 February 2022. 12. The Adjudicating Authority took the view that in view of the stay of the CIRP of the Corporate Debtor by order dated 25.02.2022 passed by the Hon ble Supreme Court, the Resolution Professional cannot continue and his all actions are without jurisdiction. Direction was issued to the Resolution Professional to handover the management of the Corporate Debtor to the CEO/Management of the Corporate Debtor, which has been impugned in the present Appeals. The judgment of this Tribunal in Ashok Kumar Tyagi (supra) on which reliance has been placed by the Adjudicating Authority does not lay down any proposition that when order of initiating CIRP has been stayed, the result would be to handover the Corporate Debtor to the ex- management by Resolution Professional. In Ashok Kumar Tyagi (supra), this Tribunal noticed the difference between stay of an order and quashing of an order. In Ashok Kumar Tyagi (supra) this Tribunal placed reliance on the judgment of the Hon ble Supreme Court in Shree Chamundi Mopeds Ltd. vs. Church of South India Trust Association- [1992 (3) SCC 1] . In Ashok Kumar Tyagi (supra), in paragraph 18, following proposit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en refused by detailed order of this Tribunal dated 06.11.2023. We see no reason to issue any direction to permit Respondent No.1 to work as Executive Editor. We have already noticed that the Appeal filed by Mr. Navin Kumar Upadhyay- Respondent No.1 before the Hon ble Supreme Court challenging the order dated 16.12.2021 of this Tribunal is already pending. It is open for the Respondent No.1 herein who is Appellant before the Hon ble Supreme Court to pray such order as may be advised. We have also noticed that after the order of the Hon ble Supreme Court dated 25.02.2022 staying the CIRP, Resolution Professional has also filed an application before the Hon ble Supreme Court seeking certain directions and clarifications which application was directed by the Hon ble Supreme Court to be heard along with the hearing of the appeal which application is still pending and no order has been passed by the Hon ble Supreme Court. When the Appeal before the Hon ble Supreme Court filed by the Respondent No.1 is still pending, the Adjudicating Authority ought to have stayed his hands to issue any direction to hand over the management of the Corporate Debtor to the ex-management and the Adjudicatin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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