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TMI Blog2023 (2) TMI 1235X X X X Extracts X X X X X X X X Extracts X X X X ..... default committed by the Appellant, the Application was initiated alleging default of Rs. 4,689,990,947.45. The Adjudicating Authority heard the parties on 14.12.2022 and reserved the order. Subsequent to reserving of the order by the Adjudicating Authority, an Interlocutory Application was filed by the Corporate Debtor being I.A. no. 210/2023. In the I.A. the Corporate Debtor stated that final hearing in the Application took place on 14.12.2022 and the matter was reserved for orders. It is submitted that Yes Bank has already assigned the debt in favour of JC Flowers Asset Reconstruction Company. Letter dated 13.12.2022 sent by Yes Bank has also been referred and in the Application following prayer was made: "PRAYERS: In view of the above, the Applicant abovenamed prays for the following reliefs form this Hon'ble Tribunal: a. that, this Hon'ble Tribunal be pleased to dismiss the Company Petition No. 301 of 2022 and Interlocutory Application No. 1257 of 2022; b. that, pending hearing and final disposal of the present Interlocutory Application, this Hon'ble Tribunal be pleased to stay the proceedings in the Company Petition No. 301 of 2022 and the Interlocutory Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther submitted that in view of the provision of Section 5(4) of SARFAECI Act, 2002, the proceeding could not have been abated merely because of an assignment and proceeding could have been continued and it was open for the assignee to come or not to come and there was no error in the order dated 10.02.2023. He has relied upon a judgment of the Hon'ble Supreme Court- 2016(1) SCC 730 titled "Sharadamma Vs. Mohammed Pyrejan (Dead) through Legal representatives and Another". 7. We have heard the parties and perused the records. There is no dispute between the parties that Section 7 Application was heard on 14.12.2022 and order was reserved. After reserving of the order by the Adjudicating Authority, I.A. No. 210 of 2023 has been filed by the Corporate Debtor. In paragraph-3 of the Application the fact it is clearly mentioned that the order was reserved and hearing took place on 14.12.2023. 8. The events which took place pertaining to assignment in favour of JC Flower ARC has been mentioned in paragraphs 4 to 7. It is useful to extract the contents of paragraphs 3 to 7 "3. The Applicant states that, the 'Final Hearing' of the Petition took place on 14th December 2022. After hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owers Asset Reconstruction Private Limited ("JCF ARC") vide assignment agreement executed in favour of JCF ARC acting in its capacity as trustee of JCF YES 2022-23/4 Trust on December 16, 2022.. Pursuant to the above, JCF ARC has become the lender and all the rights, title and interest of YES Bank with respect to the financial assets pertaining to the Borrower together with security created thereof stands vested in JCF ARC pursuant to the provisions of Securitisation and Reconstruction of Financial assets and Enforcement of Security Interest Act, 2022..." Copies of the letters dated 2nd January 2023 issued by JC Flowers ARC to the Applicant and the Principal Borrowers are annexed hereto and marked as 'Exhibit C(colly)'. 7. Under Section 60(5)(a) of the Code read with Rule 11 of the NCLT Rules, this Hon'ble Tribunal has the inherent jurisdiction to entertain or dispose off any application or proceedings by or against the corporate or corporate person for meeting ends of justice and/or to prevent abuse of process of this Hon'ble Tribunal. For the reasons as set out herein, the present IA is required to be decided by this Hon'ble Tribunal." 9. The submission which has been mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said bank or financial institution, securitisation company or reconstruction company, as the case may be, had been a party thereto or as if they had been issued in favour of securitisation company o reconstruction company, as the case may be. (4) If, on the date of acquisition of financial asset under sub- section (1), any suit, appeal or other proceeding of whatever nature relating to the said financial asset is pending by or against the bank or financial institution, save as provided in the third proviso to sub- section (1) of section 15 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986 ) the same shall not abate, or be discontinued or be, in any way, prejudicially affected by reason of the acquisition of financial asset by the securitisation company or reconstruction company, as the case may be, but the suit, appeal or other proceeding may be continued, prosecuted and enforced by or Case Citation: (2023) ibclaw.in 131 NCLAT IBC Laws| www.ibclaw.in Company Appeal (AT)(Insolvency) No. 179 of 2023 Page 9 of 12 against the securitisation company or reconstruction company, as the case may be." 10. The provisions of Section 5(4) of SARFAESI Act are clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the assignee to move an application for impleadment and to continue the proceedings. Thus, there cannot be dismissal of the suit or appeal, as the case may be, on account of failure of the assignee to file an application to continue to proceedings. It would be open to the assignor to continue the proceedings notwithstanding the fact that he ceased to have any interest in the subject-matter of dispute. He can continue the proceedings for the benefit of assignee." 13. Hon'ble Supreme Court on considering the aforesaid Rules had held that on account of failure of assignee to file application to continue the proceeding, the application could not have been dismissed, the original Applicant could have continued the proceeding for the benefit of assignee. There can be no dispute to the proposition laid down by the Hon'ble Supreme Court in reference to provision under Order 22, Rules 10 & 11 of CPC. In the present case we are considering the case where Section 7 Application was filed by the Yes Bank where hearing took place before the Adjudicating Authority, the fact of assignment was brought under notice and prayer was made to dismiss Section 7 Application. Application was enterta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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