(Indira Banerjee and Sanjiv Khanna, JJ.)
ESS Investments Pvt. Ltd. ___________________________ Appellant;
v.
Lokhandwala Infrastructure Pvt. Ltd. and Another _____ Respondent(s).
Civil Appeal No(s). 324/2020, decided on January 31, 2020
With
C.A. No. 325/2020 SLP(C) No. 222/2020 SLP(C) No. 451/2020
Civil Appeal No(s). 324/2020; C.A. No. 325/2020; SLP(C) No. 222/2020; and SLP(C) No. 451/2020
The Order of the court was delivered by
Order
1. The appellant filed a petition against the Respondent No. 1 before the National Company Law Tribunal (NCLT) Mumbai being CP(IB) No. 4000/MP/2018 under Section 7 of the Insolvency and Bankruptcy Code 2016 (for short ‘the IBC’), claiming Rs. 1,76,87,356/- along with interest @ 13% per annum.
2. Three other similar petitions including a petition of Dalmia Group Holdings being CP No. 1023/MP/2019 were filed against the Respondent No. 1 under Section 7 of the IBC.
3. By an order dated 8.8.2019, the petition being CP No. 1023/MP/2019 filed by Dalmia Group Holdings was admitted and an order was passed on 19.9.2019 of commencement of the resolution process by appointment of an Interim Resolution Professional (IRP). The IRP issued notices in newspapers inviting claims from all creditors, pursuant to which the Appellant filed its claim before IRP.
4. However, on or about 10.10.2019 the Respondent No. 1 settled its disputes with Dalmia Group Holdings. An appeal filed by the Respondent No. 1 before Appellate Tribunal (NCLAT) being Company Appeal (AT) (Insolvency) No. 1061 of 2019 was disposed of by setting aside the order dated 19.9.2019, but not the order dated 8.8.2019 whereby C.P. No. 1023/MP/2019 filed by Dalmia Group Holdings had been admitted. It is submitted that the attention of NCLT was not drawn to the claims of other creditors of Respondent No. 1.
5. In the meanwhile, by an order dated 4.9.2019 the petition of the appellant was rejected by NCLT on the ground of admission of the petition of Dalmia Group Holdings on 8.8.2019. It is argued that the NCLT had made an observation that the Appellant might file its claim before the IRP to be appointed in CP No. 1023/MP/2019 filed by Dalmia Group Holdings, though this was not recorded in the order dated 4.9.2019.
6. Since the disputes between the Respondent No. 1 and Dalmia Group Holdings has been settled and the order dated 19.9.2019 has been set aside, it will be open to the appellant to proceed against the Respondent No. 1 before the NCLT by seeking recall of the order dated 4.9.2018 and revival of its application No. CP(IB) No. 4000/MP/2018.
7. Civil Appeal No. 324/2020 is disposed of accordingly.
8. Needless to mention, all contentions are kept open. This order will govern SLP (C) No. 222/2020, SLP (C) No. 451/2020 and C.A. No. 325/2020, which are also disposed of.
9. Pending application(s), if any, shall stand disposed of. Delay condoned.
CIVIL APPEAL NO(S). 324/2020
M/s. ESS Investments Pvt. Ltd _________________________ Appellant
v.
Lokhandwala Infrastructure Pvt. Ltd. & Anr ___________ Respondent(s)
(IA No. 197674/2019-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No. 197672/2019-PERMISSION TO FILE APPEAL)
WITH C.A. No. 325/2020 (XVII)
(IA No. 163/2020-EX-PARTE AD-INTERIM RELIEF and IA No. 162/2020-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT and IA No. 161/2020-PERMISSION TO FILE APPEAL)
SLP(C) No. 222/2020 (XVII)
SLP(C) No. 451/2020 (XVII)
(FOR ADMISSION and I.R.)
Date : 31-01-2020 These matters were called on for hearing today.
(Before Indira Banerjee and Sanjiv Khanna, JJ.)
For Appellant(s) Mr. Sidhartha Dave, Sr. Adv.
Mr. Firdaus Moosa, Adv.
Mr. Chandra Bhushan Prasad, AOR
Ms. Sukriti Bhardwaj, Adv.
For Respondent(s) Mr. Yusuf Iqbal, Adv.
Mr. Bhavay Sethi, Adv.
Ms. Gyanika Kochar, Adv.
Mr. Anil Rao, Adv.
Mr. Deepak Anand, AOR
Mr. Shikhil Suri, Adv.
Mr. Shiv Kumar Suri, Adv.
Ms. Shilpa Saini, Adv.
UPON hearing the counsel the Court made the following
ORDER
10. These appeals and special leave petitions are disposed of in terms of the signed order.
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