Section 33(5) IBC bars new suits post-liquidation but permits continuation of pending ones; liquidator impleadable as defendant to defend; Section 63 does not oust civil court jurisdiction over pre-existing salary recovery claims; Section 53 prioritises but does not extinguish excess dues. (38 words)

JUDGMENT :

SANDEEP V. MARNE, J.

1. By this Petition, Petitioner challenges order dated 17 October 2022 passed by the learned Judge of City Civil Court, Greater Mumbai, dismissing Chamber Summons No. 1769 of 2019 filed by the Petitioner-Plaintiff for adding Official Liquidator as party Defendant in the Suit.

2. Briefly stated, facts of the case are that Petitioner is a Plaintiff in Summary Suit No.1398 of 2017 filed before the City Civil Court for recovery of monies from the Defendant. Petitioner-Plaintiff is a management professional and had joined the services with the Respondent No.1 as Chief Operating Officer on 24 April 2006 in the High Value Fine Cotton Division. He was confirmed in service on 24 January 2007. According to the Plaintiff, Respondent No.1 was irregular in payment of salaries. Plaintiff resigned from services of Respondent No.1 with effect from 10 October 2014 alleging irregularities in payment of salaries. By his letter dated 9 October 2014, he requested release of his full gratuity. He was paid lump sum amount of Rs.5,00,000/- towards gratuity. According to the Plaintiff, there are dues in respect of salaries and other allowances from Respondent No.1. According to Petitioner- Plaintiff, Respondent No.1 never disputed the liability to pay salaries but cited the reason of financial crunch. Plaintiff has filed Summary Suit No.1398 of 2017 on 4 October 2017 under Order XXXVII, Rule 2 of the Code of Civil Procedure, 1908 (Code) before the City Civil Court for recovery of principal sum of Rs.76,85,981/-.

3. Despite service of summons, Respondent No.1 failed to appear or to apply for leave to defend within the prescribed time limit. Accordingly, order has been passed on 22 June 2018 directing that the Suit would proceed ex parte against Respondent No.1.

4. Petitioner-Plaintiff claims that he became aware about filing of Company Petition No.294 of 2018 under Section 7 of Insolvency and Bankruptcy Code, 2016 (IBC) by IDBI Bank Limited as financial creditor before National Company Law Tribunal (NCLT) and by order dated 24 April 2018, moratorium was imposed in respect of Respondent No.1 and an Interim Resolution Professional (IRP) was appointed. Petitioner- Plaintiff informed the IRP about pendency of Summary Suit by letter dated 18 July 2018. Petitioner-Plaintiff also lodged his claim with IRP. Later, Resolution Professional (RP) was appointed in respect of Respondent No.1 and Petitioner pursued his claim with the RP. By order dated 19 June 2019, NCLT made an order of liquidation in respect of Respondent No.1. After acquisition of knowledge about liquidation of Respondent No.1, Petitioner-Plaintiff preferred Chamber Summons No.1769 of 2019 in the Summary Suit, seeking impleadment of the Liquidator of Respondent No.1 (Respondent No.2) as party Defendant to the Suit. Respondent No.2-Liquidator opposed his impleadment to the Suit. By order dated 17 October 2022, the learned Trial Judge has dismissed the Chamber Summons preferred by the Petitioner-Plaintiff. Aggrieved by order dated 17 October 2022, the Petitioner-Plaintiff has filed the present Petition.

5. Mr. Savant, the learned counsel appearing for Petitioner would submit that the Trial Court has erred i