Back
2026 Supreme(Bom) 492
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANDEEP V. MARNE, J.
Anupam Dikshit – Appellant
Versus
S. Kumars Nationwide Limited – Respondent
Writ Petition No. 5393 of 2023
Decided On : 05-02-2026
Important Points
Subject
Insolvency and Bankruptcy - Liquidation Process
Act Referred
INSOLVENCY AND BANKRUPTCY CODE: S.33(1), S.35(1)(k), S.38, S.40, S.42, S.53, S.63, S.7
ARBITRATION AND CONCILIATION ACT: S.11
Headnote
(B) Code of Civil Procedure, 1908 - Order XXXVII - Amendment/impleadment applications - Court not to examine merits, correctness of proposed amendment or suit maintainability at that stage. (Para 13)
Facts of the case:
Petitioner, a former employee, filed summary suit for recovery of principal sum towards unpaid salaries and allowances after resigning alleging irregular payments. Defendant failed to appear, suit proceeded ex parte. Upon learning of insolvency admission, moratorium and later liquidation, petitioner lodged claim with resolution/liquidation professionals and sought to implead liquidator as defendant via chamber summons, which was dismissed.
Findings of Court:
Impugned order set aside; chamber summons made absolute; plaint to be amended within four weeks.
Issues: Whether Section 33(5) and 63 bar continuation of pre-liquidation pending suits and impleadment of liquidator; whether claims exceeding priority period under Section 53 are obliterated; propriety of trial court venturing into merits in amendment application.
Ratio Decidendi: Distinguishing moratorium under Section 14 from liquidation bar under Section 33(5), continuation of instituted suits permitted; liquidator empowered to defend under Sections 35(1)(k); civil courts retain jurisdiction over non-IBC matters like salary suits; parallel claim mechanism under Sections 38-42 optional, not ousting suits. Result : Writ petition allowed; no costs.
For the Appellants : Rohan Savant, Huzefa Khokhawala, Nankani
For the Respondent: Harsh Sheth
| Table of Content |
|---|
| 1. pending summary suit predates ibc liquidation. (Para 1 , 2 , 3 , 4) |
| 2. no ibc bar on impleading liquidator in pending suits. (Para 5 , 6 , 7) |
| 3. ibc liquidation mechanism bars parallel civil suits. (Para 8) |
| 4. trial court erred venturing merits in amendment application. (Para 9 , 10 , 11 , 12 , 13 , 14) |
| 5. section 33(5) ibc allows continuation of pre-existing suits. (Para 15 , 16 , 17 , 18) |
| 6. liquidator impleadable in pending proceedings; precedents binding. (Para 19 , 20 , 21) |
| 7. section 63 ibc excludes pre-liquidation pending suits. (Para 22 , 23) |
| 8. ibc claim process optional alongside pending suits. (Para 24) |
| 9. section 53 ibc prioritizes wages; does not extinguish claims. (Para 25 , 26) |
| 10. impleadment allowed; impugned order set aside. (Para 27 , 28 , 29) |
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
