National Company Law Appellate Tribunal
Karthikeyan vs R. Venkatakrishnan Liquidator St John ... on 17 March, 2023
NATIONAL COMPANY LAW APPELLATE TRIBUNAL
AT CHENNAI
(APPELLATE JURISDICTION)
IA No. 128 of 2023
in
Company Appeal (AT) (CH) (INS) No. 35 of 2023
(Arising out of an `Order' dated 19.01.2023 in IA(IBC)/1018(CHE)/2022 in
CP/759(IB)/CB/2018, passed by the `Adjudicating Authority' (`National
Company Law Tribunal', Division Bench - II, Chennai)
In the matter of:
Mr. Karthikeyan
Proprietor: MSK Lorry Booking Office
Address : B/90/2, North Street,
Thiruchendur Main Road,
Muthaiyapuram,
Tuticorin - 628 005 ..... Petitioner / Appellant
v.
1) R. Venkatakrishnan,
Liquidator St. John Freight Systems Limited
Address: ``Rajaparis Trimeni Towers'
1st Floor, 147, G.N. Chetty Road,
T. Nagar, Chennai - 600 017 ..... 1st Respondent / Liquidator
(Caveator)
2) G C Logistics India Pvt. Ltd.
(Purchaser)
Address : 22, Bharathi Park, 7th Cross,
Saibaba Colony,
Coimbatore - 641 011 ..... 2nd Respondent / Successful
Resolution Applicant
Present:
For Petitioner / : Mr. P.H. Arvindh Pandian, Senior Advocate
Appellant For Mr. Pradeep Raj, Advocate
IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023
Page 1 of 19
For Respondent No.1 / : Mr. T.K. Bhaskar, Advocate
Liquidator (Caveator) For Mr. Mayan H. Jain
Mr. G. Pranav and Ms. Niveditha Narayanan,
Advocates,
Mr. R. Venkatakrishnan, Liquidator
For Respondent No.2 / : Mr. M.S. Krishnan, Senior Advocate
Successful Resolution For Mr. Anirudh Krishnan and
Applicant Ms. Rupikaa Srinivasan, Advocates
ORDER
(Virtual Mode) Justice M. Venugopal, Member (Judicial):
IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023:
Preamble:
The Petitioner / Appellant in IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023, has sought a `Leave', to prefer the instant Comp. App (AT) (CH) (INS.) No. 35 of 2023, in respect of the `Impugned Order', dated 19.01.2023, passed by the `Adjudicating Authority' (`National Company Law Tribunal', Division Bench - II, Chennai) in IA(IBC)/1018(CHE)/2022 in CP/759/IB/CB/2018.
Petitioner / Appellant's Submissions:
2. According to the Petitioner / Appellant, it being a `Member' of the `Stakeholders Consultation Committee' of the `Corporate Debtor' / `M/s.
St. John Freight Systems Ltd.' (`under Liquidation'), is `Aggrieved', by IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 2 of 19 the `Impugned Order', so passed and `owing to the prevalent exigencies, prays for `Granting' of `Leave' to file the instant `Appeal', because of the fact that `no prejudice', will be caused to anyone, if the `Interlocutory Application', is `allowed', by this `Tribunal'.
3. Advancing his argument, the Learned Senior Counsel for the `Petitioner / Appellant' submits that the `concept of `Sufficient Cause', is `alien' to the maintaining of an `Appeal', under Section 61 (1) of the I & B Code, 2016. Moreover, any `Person', who is `Aggrieved', may maintain an `Appeal', if he has a `legal grievance', to agitate, which involves the `violation' of `any procedural' or `substantive rights', in the eye of `Law'.
4. The forceful contention of the Petitioner / Appellant is that as a `Stakeholder', who is entitled to receive `monies', under the `waterfall mechanism', he is entitled to seek `Leave', for filing an `Appeal', and in fact, where the `Process' of `Sale' and `Realisation' itself, is an `erroneous' one, resulting in `violation' of the `principles of maximization of value', in turn, affects the `Pay-out' to the `Petitioner / Appellant', as per Section 53 of the I & B Code, 2016, it is clear that the `Legal Right' of the `Appellant', has been affected and hence, the `Petitioner / Appellant', is a `Person Aggrieved'.
IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 3 of 19
5. In short, the plea of the Petitioner / Appellant is that, there is no need to prove any `Sufficient Cause', to prefer an `Appeal'. Petitioner / Appellant's Citations:
6. The Learned Counsel for the Petitioner / Appellant, falls back upon the decision of the Hon'ble Supreme Court of India in Samir Agrawal v. Competition Commission of India (vide Civil Appeal No. 3100 of 2020 dated 15.12.2020, reported in MANU/SC/0940/2020), whereby and whereunder, at Paragraphs 16 to 23, it is observed as under:
16. ``Section 45 of the Act is a deterrent against persons who provide information to the CCI, mala fide or recklessly, in as much as false statements and omissions of material facts are punishable with a penalty which may extend to the hefty amount of rupees one crore, with the CCI being empowered to pass other such orders as it deems fit. This, and the judicious use of heavy costs being imposed when the information supplied is either frivolous or mala fide, can keep in check what is described as the growing tendency of persons being "set up" by rivals in the trade.
17. The 2009 Regulations also point in the same direction in as much as regulation 10, which has been set out hereinabove, does not require the informant to state how he is personally aggrieved by the contravention of the Act, but only requires a statement of facts and details of the alleged contravention to be set out in the information filed. Also, regulation 25 shows that public interest must be foremost in the consideration of the CCI when an application is made to it in writing that a person or enterprise has substantial interest in the outcome of the proceedings, and such person may therefore be allowed to take part in the proceedings.
IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 4 of 19 What is also extremely important is regulation 35, by which the CCI must maintain confidentiality of the identity of an informant on a request made to it in writing, so that such informant be free from harassment by persons involved in contravening the Act.
18. This being the case, it is difficult to agree with the impugned judgment of the NCLAT in its narrow construction of section 19 of the Act, which therefore stands set aside.
19. With the question of the Informant's locus standi out of the way, one more important aspect needs to be decided, and that is the submission of Shri Rao, that in any case, a person like the Informant cannot be said to be a "person aggrieved" for the purpose of sections 53B and 53T of the Act. Shri Rao relies heavily upon Adi Pherozshah Gandhi (supra), in which section 37 of the Advocates Act, 1961 came up for consideration, which spoke of the right of appeal of "any person aggrieved" by an order of the disciplinary committee of a State Bar Council. It was held that since the Advocate General could not be said to be a person aggrieved by an order made by the disciplinary committee of the State Bar Council against a particular advocate, he would have no locus standi to appeal to the Bar Council of India. In so saying, the Court held:
"11. From these cases it is apparent that any person who feels disappointed with the result of the case is not a "person aggrieved". He must be disappointed of a benefit which he would have received if the order had gone the other way. The order must cause him a legal grievance by wrongfully depriving him of something. It is no doubt a legal grievance and not a grievance about material matters but his legal grievance must be a tendency to injure him. That the order is wrong or that it acquits some one who he thinks ought to be convicted does not by itself give rise to a legal grievance.''
20. It must immediately be pointed out that this provision of the Advocates Act, 1961 is in the context of a particular advocate being IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 5 of 19 penalized for professional or other misconduct, which concerned itself with an action in personam, unlike the present case, which is concerned with an action in rem. In this context, it is useful to refer to the judgment in A. Subash Babu v. State of A.P., (2011) 7 SCC 616, in which the expression "person aggrieved" in section 198(1)(c) of the Code of Criminal Procedure, 1973, when it came to an offence punishable under section 494 of the Indian Penal Code, 1860 (being the offence of bigamy), was under
consideration. It was held that a "person aggrieved" need not only be the first wife, but can also include a second "wife" who may complain of the same. In so saying, the Court held: (SCC pp. 628- 29 Para 25) "25. Even otherwise, as explained earlier, the second wife suffers several legal wrongs and/or legal injuries when the second marriage is treated as a nullity by the husband arbitrarily, without recourse to the court or where a declaration sought is granted by a competent court. The expression "aggrieved person" denotes an elastic and an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which the contravention is alleged, the specific circumstances of the case, the nature and extent of complainant's interest and the nature and the extent of the prejudice or injury suffered by the complainant. Section 494 does not restrict the right of filing complaint to the first wife and there is no reason to read the said section in a restricted manner as is suggested by the learned counsel for the appellant. Section 494 does not say that the complaint for commission of offence under the said section can be filed only by the wife living and not by the woman with whom the subsequent marriage takes place during the lifetime of the wife living and which marriage is void by reason of its taking place during the life of such wife. The complaint can also be filed by the person with whom the second marriage takes place which is void by reason of its taking place during the life of the first wife." (page 628) IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 6 of 19
21. Clearly, therefore, given the context of the Act in which the CCI and the NCLAT deal with practices which have an adverse effect on competition in derogation of the interest of consumers, it is clear that the Act vests powers in the CCI and enables it to act in rem, in public interest. This would make it clear that a "person aggrieved"
must, in the context of the Act, be understood widely and not be constructed narrowly, as was done in Adi Pherozshah Gandhi (supra). Further, it is not without significance that the expressions used in sections 53B and 53T of the Act are "any person", thereby signifying that all persons who bring to the CCI information of practices that are contrary to the provisions of the Act, could be said to be aggrieved by an adverse order of the CCI in case it refuses to act upon the information supplied. By way of contrast, section 53N(3) speaks of making payment to an applicant as compensation for the loss or damage caused to the applicant as a result of any contravention of the provisions of Chapter II of the Act, having been committed by an enterprise. By this sub-section, clearly, therefore, "any person" who makes an application for compensation, under sub-section (1) of section 53N of the Act, would refer only to persons who have suffered loss or damage, thereby, qualifying the expression "any person" as being a person who has suffered loss or damage. Thus, the preliminary objections against the Informant/Appellant filing Information before the CCI and filing an appeal before the NCLAT are rejected.
22. An instructive judgment of this Court reported as Competition Commission of India v. Steel Authority of India, MANU/SC/0690/2010 : (2010) 10 SCC 744 dealt with the provisions of the Act in some detail and held: (SCC pp. 768, 788-89 & 794, paras 37-38, 101-06 & 125-26).
"37. As already noticed, in exercise of its powers, the Commission is expected to form its opinion as to the existence of a prima facie case for contravention of certain provisions of the Act and then pass a direction to the Director General to cause an investigation into the matter. These proceedings are initiated by the intimation or IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 7 of 19 reference received by the Commission in any of the manners specified under Section 19 of the Act. At the very threshold, the Commission is to exercise its powers in passing the direction for investigation; or where it finds that there exists no prima facie case justifying passing of such a direction to the Director General, it can close the matter and/or pass such orders as it may deem fit and proper. In other words, the order passed by the Commission under Section 26(2) is a final order as it puts an end to the proceedings initiated upon receiving the information in one of the specified modes. This order has been specifically made appealable under Section 53-A of the Act.
38. In contradistinction, the direction under Section 26(1) after formation of a prima facie opinion is a direction simpliciter to cause an investigation into the matter. Issuance of such a direction, at the face of it, is an administrative direction to one of its own wings departmentally and is without entering upon any adjudicatory process. It does not effectively determine any right or obligation of the parties to the lis. Closure of the case causes determination of rights and affects a party i.e. the informant; resultantly, the said party has a right to appeal against such closure of case under Section 26(2) of the Act. On the other hand, mere direction for investigation to one of the wings of the Commission is akin to a departmental proceeding which does not entail civil consequences for any person, particularly, in light of the strict confidentiality that is expected to be maintained by the Commission in terms of Section 57 of the Act and Regulation 35 of the Regulations."
101. The right to prefer an appeal is available to the Central Government, the State Government or a local authority or enterprise or any person aggrieved by any direction, decision or order referred to in clause (a) of Section 53-A [ought to be printed as 53-A(1)(a)]. The appeal is to be filed within the period specified and Section 53-B(3) further requires that the Tribunal, after giving the parties to appeal an opportunity of being heard, to pass such IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 8 of 19 orders, as it thinks fit, and send a copy of such order to the Commission and the parties to the appeal.
102. Section 53-S contemplates that before the Tribunal a person may either appear "in person" or authorise one or more chartered accountants or company secretaries, cost accountants or legal practitioners or any of its officers to present its case before the Tribunal. However, the Commission's right to legal representation in any appeal before the Tribunal has been specifically mentioned under Section 53-S(3). It provides that the Commission may authorise one or more of chartered accountants or company secretaries or cost accountants or legal practitioners or any of its officers to act as presenting officers before the Tribunal. Section 53-T grants a right in specific terms to the Commission to prefer an appeal before the Supreme Court within 60 days from the date of communication of the decision or order of the Tribunal to them.
103. The expression "any person" appearing in Section 53- B has to be construed liberally as the provision first mentions specific government bodies then local authorities and enterprises, which term, in any case, is of generic nature and then lastly mentions "any person". Obviously, it is intended that expanded meaning be given to the term "persons" i.e. persons or bodies who are entitled to appeal. The right of hearing is also available to the parties to appeal.
104. The above stated provisions clearly indicate that the Commission, a body corporate, is expected to be party in the proceedings before the Tribunal as it has a legal right of representation. Absence of the Commission before the Tribunal will deprive it of presenting its views in the proceedings. Thus, it may not be able to effectively exercise its right to appeal in terms of Section 53 of the Act.
105. Furthermore, Regulations 14(4) and 51 support the view that the Commission can be a necessary or a proper party in the proceedings before the Tribunal. The Commission, in terms of IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 9 of 19 Section 19 read with Section 26 of the Act, is entitled to commence proceedings suo motu and adopt its own procedure for completion of such proceedings. Thus, the principle of fairness would demand that such party should be heard by the Tribunal before any orders adverse to it are passed in such cases. The Tribunal has taken this view and we have no hesitation in accepting that in cases where proceedings initiated suo motu by the Commission, the Commission is a necessary party.
106. However, we are also of the view that in other cases the Commission would be a proper party. It would not only help in expeditious disposal, but the Commission, as an expert body, in any case, is entitled to participate in its proceedings in terms of Regulation 51. Thus, the assistance rendered by the Commission to the Tribunal could be useful in complete and effective adjudication of the issue before it." (page 788) "125. We have already noticed that the principal objects of the Act, in terms of its Preamble and the Statement of Objects and Reasons, are to eliminate practices having adverse effect on the competition, to promote and sustain competition in the market, to protect the interest of the consumers and ensure freedom of trade carried on by the participants in the market, in view of the economic developments in the country. In other words, the Act requires not only protection of free trade but also protection of consumer interest. The delay in disposal of cases, as well as undue continuation of interim restraint orders, can adversely and prejudicially affect the free economy of the country. Efforts to liberalise the Indian economy to bring it on a par with the best of the economies in this era of globalisation would be jeopardised if time-bound schedule and, in any case, expeditious disposal by the Commission is not adhered to. The scheme of various provisions of the Act which we have already referred to including Sections 26, 29, 30, 31, 53-B(5) and 53-T and Regulations 12, 15, 16, 22, 32, 48 and 31 clearly show the legislative intent to ensure timebound disposal of such matters.
IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 10 of 19
126. The Commission performs various functions including regulatory, inquisitorial and adjudicatory. The powers conferred by the legislature upon the Commission under Sections 27(d) and 31(3) are of wide magnitude and of serious ramifications. The Commission has the jurisdiction even to direct that an agreement entered into between the parties shall stand modified to the extent and in the manner, as may be specified. Similarly, where it is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, the Commission is empowered to direct such modification." (page 794)
23. Obviously, when the CCI performs inquisitorial, as opposed to adjudicatory functions, the doors of approaching the CCI and the appellate authority, i.e., the NCLAT, must be kept wide open in public interest, so as to subserve the high public purpose of the Act.'' 1st Respondent / Liquidator's Contentions:
7. The Learned Counsel for the 1st Respondent / Liquidator submits that the `Petitioner / Appellant', had full and complete knowledge of the ongoing proceedings, but he was not a `Party' to the `Original Proceedings', before the `Adjudicating Authority', in IA(IBC)/1018(CHE)/2022 in CP/759(IB)/CB/2018, and as such, cannot maintain the IA No. 128 of 2023 and the main Comp. App (AT) (CH) (INS.) No. 35 of 2023.
8. The Learned Counsel for the 1st Respondent / Liquidator points out that the `Petitioner / Appellant', had filed IA No. 922 of 2022, IA No. IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 11 of 19 1094 of 2022 and IA No. 1095 of 2022, seeking numerous `Reliefs', against the `Respondent', which were `dismissed', through a `Common Order' dated 19.01.2023. Also that, the `Petitioner / Appellant', had not raised any contention, relating to the conduct of the whole `Liquidation Process', conducted by the `1st Respondent', in any of its `Pleadings', and still the `Adjudicating Authority', had granted `Opportunity', to it, to go through the `whole process', and to put forth its contentions.
9. The Learned Counsel for the 1st Respondent / Liquidator takes a stand that in the `9th Meeting' of the `Stakeholders Consultation Committee' dated 30.10.2021, when the `Proposals', received by the `Liquidator', were put to `Vote', before the `SCC Members', the `Petitioner', who was part of the said meeting, had voted against all the `Proposals' received. In reality, the `Petitioner / Appellant', had furnished a reason in rejecting the `Proposals', to effect that `it wants the Promoter, to takeover the Company'.
10. On behalf of the 1st Respondent / Liquidator, it is brought to the notice of this `Tribunal' that the `Petitioner' made an endeavour to question the `Order' dated 11.03.2022, passed by the `Adjudicating Authority', in and by which, the Respondent herein, was permitted to conduct the `Swiss Challenge Auction', by way of Comp. App (AT) IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 12 of 19 (CH) (INS.) No. 238 of 2022, and the same was `dismissed', by this `Tribunal' on 11.07.2022.
11. The Learned Counsel for the 1st Respondent / Liquidator points out that the `Petitioner / Appellant', seeking `Leave' to prefer an `Appeal', before this `Tribunal', is nothing but a `shot from the shoulder of the `former Promoters' of the `Corporate Debtor', to `derail', the `Liquidation Process', vis-à-vis the `Sale'. Further, when the `Petitioner / Appellant', had not raised any `Objections', before the `Adjudicating Authority', from the year `Liquidation' commenced in 2019, the IA No. 128 of 2023 is nothing, but, to `hinder' and `obstruct', the beneficial `Liquidation' of the `Corporate Debtor'.
12. It is represented on behalf of the 1st Respondent / Liquidator', pursuant to the `Order' dated 19.01.2023 made in IA(IBC)/1018(CHE)/2022 in CP/759/IB/CB/2018, by the `Adjudicating Authority', whereby the `Sale' as a `Going Concern', for the `Corporate Debtor', was `allowed', by the `Adjudicating Authority', and indeed, a `Sale Agreement' dated 27.01.2023, was executed, between the `Corporate Debtor', and the `2nd Respondent', whereby, the `Whole Management', was handed over to the `2nd Respondent' / `Company'.
That apart, the `Sale Proceeds', in `entirety', received from the `2nd IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 13 of 19 Respondent', was distributed to the `Stakeholders', as per Section 53 of the I & B Code, 2016.
13. Therefore, it is the plea of the 1st Respondent / Liquidator that, IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023, is to be `dismissed' with `exemplary costs'.
Contentions of 2nd Respondent:
14. The Learned Senior Counsel for the 2nd Respondent submits that IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023, preferred by the `Petitioner / Appellant', is a `Frivolous' one and an endeavour is made, to `derail' the `Liquidation Process' of the `Corporate Debtor', and its takeover, by the `2nd Respondent'.
15. It is represented on behalf of the 2nd Respondent that the `1st Respondent', had filed MA No. 122 of 2021 for a `Swiss Challenge Auction', to be conducted, which was `allowed', by the `Adjudicating Authority', as per `Order' dated 11.03.2022. As a matter of fact, in the `Swiss Challenge Auction', that took place on 06.04.2022, in which, the `2nd Respondent', was named as the `Successful Bidder', had paid a sum of Rs.44,64,00,000/-, towards the entire `Purchase Consideration'. IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 14 of 19
16. According to the 2nd Respondent, the concept of `Swiss Challenge Order', is recognised by the Hon'ble Supreme Court's Judgement, in the matter of Ravi Development v. Shree Krishna Prathisthan and Ors. (vide Civil Appeal No.3459 of 2009), and in respect of the `Swiss Challenge Order' dated 11.03.2022, the `Petitioner / Appellant', had preferred an Appeal in Comp. App (AT) No. 238 of 2022 and that the said `Appeal', came to be `dismissed', by this `Tribunal', on 11.07.2022, and the `Order' dated 11.03.2022, made in respect of `Swiss Challenge', had attained `finality'.
17. The Learned Counsel for the 2nd Respondent points out that the `Petitioner / Appellant', is advancing the `Erstwhile Promoters Agenda', and that the `Erstwhile Promoter' of the `Corporate Debtor', has set up the `Petitioner / Appellant', to file this `Application', to delay and derail the process.
18. The Learned Counsel for the 2nd Respondent comes out with a plea that the `Petitioner / Appellant', is not a `Stakeholder', in the `Liquidation Process' of the `Corporate Debtor', and that the `2nd Respondent', had executed the `Going Concern Purchase Agreement', for the takeover dated 27.01.2023 and took over the `Operations' of the `Corporate Debtor'. In fact, the `Official Takeover' of the `Corporate Debtor' was on IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 15 of 19 30.01.2023, and that the `2nd Respondent', has retained 350 employees, to continue running the operations of the `Corporate Debtor'.
19. The stand of the 2nd Respondent is that, the `Payment Consideration' of Rs.44,64,00,000/-, was paid by the `2nd Respondent', and the said consideration, was dispersed as per Section 53 of the I & B Code, 2016.
Appeal & Appellate Authority:
20. An `Appellant' in an `Appeal', before the `National Company Law Appellate Tribunal', under Section 61 of the I & B Code, 2016, cannot `rely' upon Section 421 of the Companies Act, 2013, as opined by this `Tribunal'. No wonder, an `Appeal', from an `Order', `Approving' such `Resolution Plan', is only limited to the grounds, laid down in Section 61 (3) of the I & B Code, 2016.
Evaluation:
21. It transpires that the 1st Respondent, had filed IA (IBC)/1018/CHE/2022 in CP/759/IB/CB/2018, before the `Adjudicating Authority' / `Tribunal' (vide Section 60 (5) of the I & B Code, 2016, read with Regulations 32A (e), seeking the `Relief' of `Sale' of the `Corporate IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 16 of 19 Debtor', as a `Going Concern', by means of a `Private Sale', together with other `Reliefs'.
22. Indeed, the Petitioner / Appellant, was not a `Party' to IA (IBC)/1018/CHE/2022 in CP/759/IB/CB/2018, before the `Adjudicating Authority' (`Tribunal'). The `Swiss Challenge Bidding', was permitted by the `Adjudicating Authority', on 11.03.2022. When a meeting was convened on 06.04.2022, to receive and consider all `Bids', in the `Swiss Challenge', the `Petitioner / Appellant', had not attended the Meeting and made `no offer'.
23. Before the `Adjudicating Authority', the Petitioner / Appellant, had not pointed out any `irregularity' and in the present `Appeal' is `estopped' from raising `objections', pertaining to the `Liquidation Process', and as such, cannot seek `Leave', of this `Tribunal'. In fact, the `Petitioner / Appellant', had not filed any `Objections', before the `Adjudicating Authority', when the `Liquidation', had commenced from the year 2019.
24. In the instant case, consequent to the Order dated 19.01.2023, passed by the `Adjudicating Authority' in IA (IBC)/1018/CHE/2022 in CP/759/IB/CB/2018 (in and by which), the `Sale' as a `Going Concern' for the `Corporate Debtor', was `allowed' by the `Adjudicating Authority'), a `Sale Agreement', was executed by the `2 nd Respondent' IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 17 of 19 with the `Corporate Debtor' and the `2nd Respondent', took over the `Whole Management' and the `Sale Proceeds', were distributed to the `Stakeholders', as per Section 53 of the I & B Code, 2016.
25. In the light of foregoings and this `Tribunal', bearing in mind a prime fact that the `Petitioner / Appellant', is not a `Stakeholder' in the `Liquidation Process', and in any event, has `no vested interest', in the `Corporate Debtor', comes to a resultant conclusion that the `IA No. 128 of 2023 in Comp App (AT) (CH) (INS.) No. 35 of 2023', filed by the `Petitioner / Appellant', is an `Otiose' one, and the same is filed, only to `disrupt', the `Liquidation Process' of the `Corporate Debtor', because of the fact that the entire `Sale Proceeds', were distributed to the `Stakeholders', as per `Section 53 of the I & B Code, 2016'. Looking at from any angle, the `Leave', prayed for. by the `Petitioner / Appellant', to file the instant Comp. App (AT) (CH) (INS.) No. 35 of 2023, is `not assented to', by this `Tribunal', cementing upon the facts and circumstances of the instant case. Accordingly, the IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023, fails.
Disposition:
In fine, the IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 is `dismissed'. No costs.
IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 18 of 19 Comp. App (AT) (CH) (INS.) No. 35 of 2023:
Consequent to the dismissal of IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 (`Leave', to prefer an `Appeal'), filed by the `Petitioner / Appellant', the main Comp. App (AT) (CH) (INS.) No. 35 of 2023, is not `entertained', and the same is `Rejected', by this `Tribunal'. The connected pending IA Nos. 129 and 130 of 2023, are `Closed'.
[Justice M. Venugopal] Member (Judicial) [Shreesha Merla] Member Technical) 17/03/2023 SR / TM IA No. 128 of 2023 in Comp. App (AT) (CH) (INS.) No. 35 of 2023 Page 19 of 19