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2023 Supreme(Online)(NCLAT) 3004
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI IN THE MATTER OF: State Bank of India …Appellant Versus Solo Metals Pvt. Ltd. & Ors. …Respondents Present: For Appellant: Mr. Siddharth Sangal, Mr. Chirag Sharma, Ms. Richa Mishra, Advocates for SBI For Respondent: Mr. Tushar Thareja, Advocate for R2 and 6.
ORDER
19.01.2023: Heard Learned Counsel for the Appellant.
This appeal has been filed against the order dated 28.02.2022 by which IA No. 601 of 2021 filed by Resolution Professional(RP) seeking appropriate direction for avoidance transactions has been dismissed.
2. The Adjudicating Authority in the order accepted the submission of the Respondent that once the Resolution Plan has been approved, Resolution Professional has no locus-standi to file the application as Former Resolution Professional.
3. Learned Counsel for the Appellant submits that in the present case, the avoidance application was filed by Resolution Professional on 20.01.2021 on which notices were also issued on 12.02.2021 whereas the Plan was approved on 22.04.2021 by the CoC, hence, application could not have been rejected. It is further submitted that judgement of the Delhi High Court of Learned Single Judge relied by Learned Counsel for Respondent has been overturned by a recent judgement dated 13.01.2023 in LPA 37/2021. The reasons made by Delhi High Court has now clearly laid down that RP will not become functus officio and is entitled to prosecute the avoidance application in para 89 sub-clause(d), following has been laid down:-
- “It follows that the RP will not be functus officio with respect to adjudication of avoidance applications in a situation, as described hereinabove.
- There being a clear demarcation between the scope and nature of the CIRP and avoidance application within the scheme of the IBC, the RP can continue to pursue such applications. The method and manner of the RP’s remuneration ought to be decided by the Adjudicating Authority itself.”
4. In view of the aforesaid, we are of the view, that Adjudicating Authority committed error in rejecting the IA No.601/2021. The appeal is allowed. The order dated 28.02.2022 is set aside. IA No. 601/2021 is revived before the Adjudicating Authority to be heard and decided in accordance with law.
[Justice Ashok Bhushan] Chairperson [Mr. Barun Mitra] Member (Technical) ss/nn Company Appeal (AT) (Insolvency) No. 1031 of 2022
