ORDER

JUSTICE DEEPA SHARMA, PRESIDENT (OFFICIATING)

1.       This order shall dispose of the Execution Petition No. 58 of 2022 and RA No. 336 of 2022.    Vide the Appeal Execution, the Appellant has challenged the order dated 21.03.2022 in Execution Petition No. 49 of 2017 whereby the State Commission pursuant to the directions of the High Court of Kerala dated 04.01.2022 in OP ( C) 1381 of 2021 heard the parties on the issue “ to consider the question of law raised, in view of Section 14 (1) (a) of the Insolvency and Bankruptcy Code, 2016 and thereafter rejected the contentions of the Appellant that no Execution Proceedings can be held against him who is the Managing Director of M/s Southern Investments Pvt. Ltd. ( hereinafter referred to as ‘Company’)  only because the Company was facing insolvency proceedings under IBC Act.  All the other contentions raised by the Appellant were also rejected by the State Commission vide the impugned order.

2.       This Commission on 25.11.2022 issued the following directions:

“When the Case has been taken up, nobody has appeared on behalf of the Appellant. However, Ms. Anubha Agrawal, learned Amicus Curiae, is present for Respondents No. 1 and 2. She states that Mr. Ajith Thomas Abraham, the Appellant herein, is the Managing Director of Southern Investment Pvt. Ltd. Even the Company has gone in liquidation/winding up, still in view of the decision of the Hon’ble Supreme Court in SLP (C) No. 12150 of 2019 (Anjali Rathi & Ors. Vs. Today Homes & Infrastructure Pvt. Ltd. & Ors.) and other connected matters, the proceedings can continue against the Managing Director of the Company.

 In this view of the matter, the Order dated 25.04.2022, staying the further proceedings in Execution Petition No. 49 of 2017, is modified and it is clarified that the Execution proceedings can continue against Mr. Ajith Thomas Abraham, who is the Managing Director of the Company, at this stage.

 List on 07.02.2023.”

3.       A review Application RA No. 336 of 2022 has been filed by the Appellant for the review of this order. 

4.       Both the Review Application and the Appeal has been heard.

5.       Counsels for both the parties are heard by me and I have perused the relevant record.

6.       The admitted facts of the case are that a complaint no. 57 of 2016 had been filed by the respondents ( hereinafter referred to as ‘Complainants’) before the State Commission.  This complaint was finally disposed of vide order dated 31.10.2016 and following directions were issued:

“Point No. 2 & 3

Booking of the apartment by the complainants, execution of the agreements Ext.A3 and A4 and receipt of the amount are admitted.  Agreed date of delivery was March 2014.  When the case came up for evidence counsel for the opposite parties prayed that if some time is granted they will be able to complete the construction and hand over the apartment to the complainant. They requested for a time of one year which appears to be on the higher side.  Therefore, opposite parties are directed to complete the construction of the apartment and hand over the same to the complainants within 6 months from this date failing which opposite party shall refund the amount paid by the complainants, ie. Rs.49,68,460/- with interest at the rate of 12% per annum from March 2014 till realization.  If the opposite parties complete the construction and hand over the apartment to the complainants, complainants will be entitled to interest at the rate of 12% per annum on the amount paid from March 2014 till the date of delivery.  Complainant is entitled to a cost of Rs.5000/- in this complaint.”

7.       In the array of parties before the State Commission in the complaint case, the present Appellant was also one of the opposite party.  This order, therefore, binds him as well.  It is apparent that when the possession as per the directions dated 31.10.2016, was not handed over to the complainants, the complainants opted for the refund of the amount to which they were entit