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Hrishikesh Roy, J.

FACTUAL MATRIX

1. These are statutory appeals under Section 62 of the Insolvency and Bankruptcy Code, 2016 [hereinafter referred to as ‘IBC’] against the judgement dated 18.09.2023 (impugned order) passed 2 of 75 by the National Company Law Appellate Tribunal [hereinafter referred to as ‘NCLAT’] in appeals, pertaining to the Corporate Insolvency Resolution Process of the Hindustan National Glass and Industries Ltd. [hereinafter referred to as ‘HNGIL’]. Additionally, there is a set of appeals arising out of the NCLAT Order dated 28.07.2023, pertaining to the approval accorded to the combination between HNGIL and AGI Greenpac. In this common judgment, the parties are identified from Civil Appeal No. 6071 of 2023.

25. Similarly, Section 53B of the Competition Act provides that ‘any enterprise or any person aggrieved’ within the statutory framework may file an appeal against any order of the CCI to the Appellate Tribunal i.e., the NCLAT. Section 53T further extends this right of appeal to the Supreme Court against any decision or order of the NCLAT.

26. Once the CIRP is initiated, the nature of proceedings are no longer in personam but rather become in rem. In light of the same, the 16 of 75 expression ‘any person aggrieved’ in the context of the IBC has been held to be indicative of there being no rigid locus requirements to institute an appeal challenging an order of the NCLT before the NCLAT or an order of the NCLAT before this Court.1 Similarly, in the context of the Competition Act, even those persons that bring to CCI information of practices that are contrary to the provisions of the Competition Act, could be said to be ‘aggrieved’.2 Therefore, the term ‘any person aggrieved’ appearing in Section 62 of the IBC and Section 53T of the Competition Act must be understood widely and not in a restricted fashion.

30. A few paragraphs from the impugned NCLAT order being relevant are extracted herein below:

“... ... 33. The question of obtaining approval from the CCI only arises when Resolution Plan submitted contains a combination and require approval from the CCI. After submission of Plan, the Resolution Applicant applies for approval of combination from the CCI. It is not in his hand that as to when CCI will grant the approval. The CCI has to act as per statutory provisions of the Competition Act and it has been given 210 days to take a decision. If, we hold that prior approval of the CCI is mandatory prior to the approval of Plan by the CoC, it will lead to incongruous result, the CIRP cannot be frozen or cannot be put at halt because an application is submitted before the CCI. Looking to the timeline provided in the Code and that of the Competition Act and to hold that prior approval of CCI is required prior to approval of Plan by the CoC, mandatorily will lead to adverse effect on the CIRP... ... ... ... 34. In the present case, we have noticed that RFRP provided that CCI’s approval has to be obtained prior to approval of Plan by the CoC, which RFRP was in accordance with Section 31(4). Although the RP subsequently clarified that approval can be obtained even after the approval by the CoC, which was in accordance with the prevalent legal position as settled by this Tribunal in Arcelor Mittal and other cases. We thus are of the view that Section 31, sub-section (4) proviso has to be 18 of 75 read to mean that though the approval by the CCI is ‘mandatory’, the approval by the CCI prior to approval of CoC is ‘directory’... ...”

110. Therefore, the impugned NCLAT order incorrectly relied upon the aforementioned NCLAT decisions. Being distinguishable, those 37 Supreme Court Employees’ Welfare Association v. Union of India, (1989) 4 SCC 187; State of Orissa v. Dhirendra Sundar Das, (2019) 6 SCC 270. 38 2020 SCC OnLine NCLAT 1013.

52 of 75 decisions could not have been unreservedly applied, to the present matters. Reliance on those decisions in different context, both on facts and on law, would lead to an erroneous interpretation on the applicability of the proviso to Section 31(4) of the IBC.