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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF FEBRUARY, 2022
PRESENT
THE HON’BLE MRS.JUSTICE S.SUJATHA
AND
THE HON’BLE MR. JUSTICE M.I.ARUN
W.A.No.3833/2019 (GM – RES) c/w
W.P.No.3415/2020 (GM – RES)
IN W.A.No.3833/2019:
BETWEEN :
URBAN INFRASTRUCTURE TRUSTEE LIMITED
A COMPANY REGISTERED
UNDER THE COMPANIES ACT, 1956
AND HAVING ITS REGISTERED
OFFICE AT 46-47, 4TH FLOOR,
MAKER CHAMBER-VI,
NARIMAN POINT,
MUMBAI-400 021 (MAHARASHTRA)
REP BY ITS AUTHORIZED SIGNATORY
Mr. DEVESH VYAS.
...APPELLANT
(BY SRI ARUNKUMAR K., SENIOR COUNSEL A/W
SRI ANIND THOMAS, ADV.)
AND :
OZONE PROPEX PRIVATE LIMITED
A COMPANY REGISTERED
UNDER THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE
AT NO.38, ULSOOR ROAD
BANGALORE-560 042, KARNATAKA
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REP BY ITS AUTHORISED SIGNATORY
Mr. GANAPATI JOSHI
…RESPONDENT
(BY SRI S.S.NAGANAND, SENIOR COUNSEL A/W
SRI PERIKAL K. ARJUN, ADV.)
THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE
ORDER DATED 25.09.2019, PASSED BY THE LEARNED SINGLE
JUDGE IN WRIT PETITION NO.41710/2019.
IN W.P.No.3415/2020:
BETWEEN :
OZONE PROPEX PRIVATE LTD.,
A COMPANY WITHIN THE MEANING
CONTAINED IN THE COMPANIES ACT,
1956, HAVING ITS REGISTERED
OFFICE AT NO.38, ULSOOR ROAD,
BANGALORE-560042, KARNATAKA
REP BY ITS AUTHORISED
Mrs. SHOBHA ACHARYA
...PETITIONER
(BY SRI S.S.NAGANAND, SENIOR COUNSEL
A/W SRI PERIKAL K. ARJUN, ADV.)
AND :
URBAN INFRASTRUCTURE TRUSTEE LTD.,
A COMPANY WITHIN THE MEANING
CONTAINED IN THE COMPANIES
ACT, HAVING OFFICE AT 46-47,
4TH FLOOR, MAKER CHAMBER VI,
NARIMAN POINT, MUMBAI CITY,
MAHARASHTRA-400021
REP. BY DIRECTOR.
…RESPONDENT
(BY SRI K.G.RAGHAVAN, SENIOR COUNSEL A/S
SRI ADITYA V. BHAT, ADV.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
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THE RECORDS OF THE COMPANY APPEAL (AT) (INSOLVENCY)
NO.204 OF 2020. CALL FOR THE RECORDS OF C.P.(IB)
NO.111/BB/2019 ON THE FILE OF THE NATIONAL COMPANY
LAW TRIBUNAL, BENGALURU AND QUASH AND SET ASIDE THE
ORDER DATED FEBRUARY 03, 2020 PASSED BY THE NATIONAL
COMPANY LAW APPELLATE TRIBUNAL IN COMPANY APPEAL
(AT) (INSOLVENCY) NO.204 OF 2020 VIDE ANNEXURE-A
AND ETC.
THIS WRIT APPEAL ALONG WITH WRIT PETITION HAVING
BEEN
HEARD
AND
RESERVED,
COMING
ON
FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, S. SUJATHA, J.,
DELIVERED THE FOLLOWING:
Since the common and akin issues are involved in
these matters, they are taken up together and disposed
of by this common judgment.
2.
These matters are taken up for final disposal
with the consent of the learned Senior counsel
appearing for both the parties.
3.
W.A.No.3833/2019 is filed by the appellant –
M/s. Urban Infrastructure Trustees Ltd., challenging
the order dated 25.09.2019 passed by the learned
Single Judge in W.P.No.41710/2019.
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4.
W.P.No.3415/2020 has been filed by the
petitioner – M/s. Ozone Propex Private Ltd., challenging
the order dated 03.02.2020 passed by the National
Company Law Appellate Tribunal in Company Appeal
(AT) (Insolvency) No.204/2020 (Annexure – A) and the
order
dated
07.02.2020
passed
by
the
CP(IB)
No.111/BB/2019 on the file of the National Company
Law Tribunal, Bengaluru (Annexure – B).
Facts of the case:
W.A.No.3833/2019:
5.
The
appellant
-
Urban
Infrastructure
Trustees Ltd., has instituted Corporate Insolvency
Resolution Process (CIRP) proceeding under Section 7 of
the Insolvency and Bankruptcy Code, 2016 (‘IB Code’
for short) in C.P. (IB) No.111/BB/2019 (Petition) before
the National Company Law Tribunal, Bengaluru, (NCLT)
on 18.01.2019 against the respondent. In the said
proceedings, the respondent – Ozone Propex Private
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Ltd., had filed I.A.No.229/2019 under Section 8 of the
Arbitration and Conciliation Act, 1996 (‘Act, 1996’ for
short) seeking to refer the disputes raised in the petition
to Arbitration. The said I.A.No.229/2019 came to be
dismissed by the Adjudicating Authority (NCLT) vide
order dated 26.08.2019. The appellant had filed a
caveat before the National Company Law Appellate
Tribunal
(NCLAT).
However,
the
respondent
had
challenged the said order dated 26.08.2019 passed by
the NCLT before the writ Court in W.P.No.41710/2019.
The writ Court vide order dated 25.09.2019 has passed
the
order
impugned,
whereby
the
order
dated
26.08.2019 passed by the NCLT on I.A.No.229/2019
has been quashed remitting the matter to the NCLT to
decide the application afresh in accordance with law
and to pass a speaking order. Being aggrieved by the
said order of the learned Single Judge, this Writ Appeal
has been filed by the appellant.
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W.P.No.3415/2020:
6.
The Adjudicating Authority (NCLT) by its
order dated 17.12.2019 considering the pendency of the
matter before this Court, decided to take up the petition
filed under Section 7 of the IB Code after the disposal of
the matter before this Court. Being aggrieved by the
said order, Urban Infrastructure Trustees Ltd., filed
Company Appeal (AT) (Insolvency) No.204/2020 before
the NCLAT, New Delhi, wherein a caveat was filed by the
Ozone Propex Pvt. Ltd., the NCLAT having heard the
learned counsel appearing for both the parties, placing
reliance on the judgment of the Hon'ble Apex Court in
the case of Innoventive Industries Ltd., vs. ICICI
Bank and another1 held that in the absence of any
interim order of stay passed by the Hon’ble High Court
of Karnataka and in the light of the judgment of the
Hon'ble Apex Court in Innoventive Industries Ltd.,1,
1 (2018) 1 SCC 407
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the petition under Section 7 of the IB Code should have
been decided within 14 days.
7.
Pursuant to the said order, NCLT by its
order dated 07.02.2020 in CP (IB) No.111/BB/2019
observed that as per the ratio laid down by the Hon'ble
Apex Court in the case of Innoventive Industries Ltd.,1
the Adjudicating Authority has to ascertain the
existence of a default within a period of 14 days on the
date of receipt of the application and if the Adjudicating
Authority is satisfied with the requisite contentions as
prescribed under the extant provisions of the code, the
application/petition must be admitted. In the light of
clarificatory orders dated 25.11.2019 passed by the
Division Bench of this Court in the present appeal
proceedings and also the orders of the NCLAT dated
03.02.2020, NCLT decided to hear the petition filed
under Section 7 of the IB Code on merits, subject to
