IN THE NATIONAL COMPANY LAW TRIBUNAL,

KOLKATA BENCH- II

KOLKATA

IA(IBC)/1708/KB/2022

IN

C.P (IB) No.250/KB/2021

An application under sections 60(5) and other relevant provisions of the Insolvency

and Bankruptcy Code, 2016 read with Rule of the National Company Law Tribunal

Rules, 2016 .

In the matter of:

Manjushree Khaitan & Ors.

… Applicants

Versus

M/s Hind Agencies

…Respondent

Date of hearing :

18/01/2023

Order Pronounced on : 07/02/2023

Coram:

Mrs. Bidisha Banerjee, Member (Judicial)

Mr. Balrarj Joshi, Member (Technical)

Counsels appeared through Physically/ Video Conference

.

Mr. Rohit Kumar Keshri, Adv.

] In IA 1060/2022

Mr. Nitish Kumar Singh,Adv.

]

IN THE NATIONAL COMPANY LAW TRIBUNAL,

KOLKATA BENCH, KOLKATA

IA(IBC)/1708/KB/2022

IN

C.P (IB) No.250/KB/2021

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Page 2 of 8

Ms. Manju Bhuteria, Adv.

] For Applicant in IA 638/2022

Mr.Debargha Basu, Adv.

]

Mr. Shounak Mukherjee,Adv.

]

Mr. Shaunak Mitra, Adv.

] For RP in IA 638/2022

Mr.Sayantak Das, Adv.

]

Mr.Amardup Singh,Adv.

]

Mr.Mainak Bose, Adv.

] For the suspended Board of Director

Mr.Tridib Bose, Adv.

]

Mr.Debjyoti Saha, Adv.

]

O R D E R

Per: Bidisha Banerjee, Member (Judicial)

1.

Ld. Counsel for the parties were heard.

2.

This is an application preferred by Operational Creditor SRF Limited under

section sections 60(5) and other relevant provisions of the Insolvency and

Bankruptcy Code, 2016 read with Rule of the National Company Law Tribunal

Rules, 2016 seeking the following reliefs:-

“ a. An order be passed directing the respondent to withdraw the

complaint being Case No. CN/1647 of 2022 instituted in the Court

of the Learned 19^th Metropolitan Magistrate at Calcutta.

b.

An order be passed injuncting and /or restraining the respondent

from pursuing its complaint being Case No. CN/1647 of 2022

instituted before the Learned 19^th Metropolitan Magistrate at

Calcutta;

c.

Ad-interim orders in terms of prayers made above;

d.

Such further or other orders be made and /or direction or directions

be given as this Hon’ble Tribunal may seem fit and proper”.

3.

It has been averred by the applicant that the applicant is in receipt of summon

IN THE NATIONAL COMPANY LAW TRIBUNAL,

KOLKATA BENCH, KOLKATA

IA(IBC)/1708/KB/2022

IN

C.P (IB) No.250/KB/2021

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Page 3 of 8

dated 5^th November, 2022 from the 19^th Metropolitan Magistrate at Calcutta

issued in Case No. CN/1647 of 2022 directing the applicants to appear in regard

to a complaint instituted by the Respondents- Corporate Debtor being Birla Tyres

Ltd. of Rs. 1,25,800/- on account of delivery and sale of HSS Hack Blades to the

Corporate Debtor in terms of the purchase order dated 21^st December, 2020.

4.

It is submitted that the Corporate Debtor is undergoing corporate insolvency

resolution process vide an order 5^th May, 2022 as initiated by this Tribunal.

5.

It is further submitted upon initiation of the CIRP, the Creditors of the Corporate

Debtor have lodged their claim with the RP and having already exercised and/or

availed its remedy as available under the Insolvency and Bankruptcy Code, 2016,

lodging complaint before the learned 19^th Metropolitan Magistrate at Calcutta for

the same amount of money is an abuse of the process of law. It attracts

operational ban under section 236(2) read with section 63 of the IBC, 2016

The Section 236(2) enjoins:

“No Court shall take cognizance of any offence punishable under this Act, save

on a complaint made by the Board or the Cen