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(2022) 19 Comp Cas-OL 357 : 2021 SCC OnLine NCLAT 428

†
In the National Company Law Appellate Tribunal
(BEFORE ASHOK BHUSHAN, CHAIRPERSON AND JARAT KUMAR JAIN, MEMBER
(JUDICIAL) AND ALOK SRIVASTAVA, MEMBER (TECHNICAL))

Prerna Singh … Applicant;

Versus
Committee of Creditors, Xalta Food and Beverages
Pvt. Ltd. and Others … Respondents.
Contempt Case (AT) No. 03 of 2020 and Company Appeal (AT)
(Insolvency) No. 104 of 2019
Decided on December 17, 2021
Advocates who appeared in this case :
Mr. Kshitij Sharda, Advocate for the Applicant;
Mr. Namit Suri and Ms. Seema Jangid, Advocates (R4-11, 13, 14, 16
& 17);
Mr. Akshay Kapoor, Advocate (R-9 & 10);
Mr. Vivek Bhagat, Advocate (R-12);
Mr. Varun, Liquidator Mr. Naveen Kumar (Liquidator, R2);
Kamalkant Chhabra (for Tamilnadu Mercantile Bank), Advcoate for
Contemnors/Respondents.
The Judgment of the Court was delivered by
JARAT KUMAR JAIN, MEMBER (JUDICIAL):— The Applicant “Mrs.
Prerna Singh” has filed the Application seeking initiation of Contempt
proceedings against the Members of Committee of Creditor (CoC) and
Resolution Professional (RP) of M/s. Xalta Food and Beverages Pvt. Ltd.
for wilful and deliberate disobedience of the order dated 31.01.2019
passed by this Appellate Tribunal in CA (AT) (Ins) No. 104 of 2019 for
recovery of arrears of rent due.
2. Brief facts of this case are that the Corporate Insolvency
Resolution Process (CIRP) was initiated on 25.07.2018 against the
Corporate Debtor “M/s Xalta Food and Beverages Pvt. Ltd.” The
Corporate Debtor was running a business of production of beverages
and allied products, was functioning from two warehouses leased to it
by the Applicant. The current rate of these two warehouses is Rs.
35,73,270/- including GST. After initiation of CIRP the Corporate Debtor
under the management of CoC and RP, continued to occupy the lease
premises but ceased paying rent thereof.
3. Ld. Adjudicating Authority allowed the Applicant's Application vide
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order dated 21.12.2018 and directed the CoC to pay the rent w.e.f.
01.12.2018 or making suitable arrangements in the alternative. The
said order was impugned in CA (AT) (Ins) No. 104 of 2019 before this
Appellate Tribunal by the CoC. This Appellate Tribunal vide order dated
31.01.2019 upheld the order of the Adjudicating Authority directed the
CoC to pay the rent w.e.f. 01.12.2018 and onwards i.e. up to the date
of moratorium. Also directed that the rent of December, 2018 and
January, 2019 be paid by 15.02.2019 and 28.02.2019 respectively.
th
Thereafter, the rent of each month should be paid by 15 of next
month. The Appeal is disposed of with the aforesaid modification.
4. The Applicant has filed a Contempt Application No. 133 of 2019
against the Respondents before the Adjudicating Authority. However,
on 18.02.2020 the Applicant withdrew the Application on the ground
that he is pressing relief prayed for in the present application before
NCLAT. Thus, vide order dated 18.02.2020, CA No. 133 of 2019 is
dismissed as withdrawn by the Adjudicating Authority.
5. This Appellate Tribunal vide its order dated 11.12.2019 passed in
CA (AT) (Ins) No. 1428 of 2019 filed by the Applicant seeking
modification of order dated 22.10.2019 passed by the Adjudicating
Authority has directed that in case any party was not complying with
order dated 31.01.2019 passed by this Appellate Tribunal, it would be
open for the Applicant herein to move an appropriate application for
appropriate relief before this Appellate Tribunal.
6. Pursuant to the said order, the present Application is filed by the
Applicant in the month of January, 2020 stating that the Applicant is
lessor of two warehouses, where plant machinery and production
facilities of the Corporate Debtor are stored. The monthly rent for the
leased premises w.e.f. October, 2019 inclusive GST is Rs. 35,73,270/-.
This Appellate Tribunal vide its order dated 31.01.2019 uphold the
direction dated 21.12.2018 given by the Adjudicating Authority
directed the CoC to pay rent w.e.f. 01.12.2018 till moratorium.
However, despite these directions as on date of application only Rs.
1,07,37,260/- has been paid to the Applicant as against the total dues
of Rs. 4,49,32,020/- leaving an outstanding of Rs. 3,41,94,733/- in
terms of the said directions. The amountpaid to the Applicant barely
covers the GST paid by her i.e. Rs. 95,02,038/- from the date of
commencement of CIRP. Including the period w.e.f. date of
commencement of CIRP, the total outstanding as on date is Rs.
4,75,26,547/-. None of the members of the CoC of the Corporate
Debtor have made complete up to date payment of rent and continuing
to defy the orders passed by this Appellate Tribunal.
7. The Applicant has taken loans to the tune of Rs. 27,30,00,000/-
for construction of leased premises, which were secured against the
rent receivable. The Applicant has to meet her liability to pay the EMIs
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amounting to Rs. 34,46,376/- for loans availed by her and also has to
remit GST of Rs. 5,24,193/- on the rent receivable each month since
this liability accrues irrespective of actual payment of rent. The
Applicant has been compelled to meet the said liabilities through other
sources putting her in a debt trap for no fault of her. As now it is
become impossible for the Applicant to continue to meet her liabilities.
8. The Contemnors in terms of order dated 31.01.2019 passed by
this Appellate Tribunal was required to pay the entire arrears of rent by
th
28.02.2019 and thereafter for each subsequent months by 15 of the
next month. However, the Contemnors have wilfully and deliberately
flouted the aforesaid directions and have failed to comply with the
same. With the aforesaid facts, the Applicant prays for the relief to
initiate the Contempt proceedings against the members of CoC and RP
of the Corporate Debtor for wilful and deliberate disobedience of the
order dated 31.01.2019 passed by this Appellate Tribunal.
9. The Respondent No. 2, Liquidator, member of CoC and
Respondent No. 12 have filed the reply of the Application.
10. Ld. Counsel for the Applicant submitted that a moratorium exists
both at the stage of Insolvency Resolution Process and also upon
passing of liquidation order as per Section 33(5) of the Code. Thus,
moratorium continuance till date. The argument of the Respondents
that they are not liable to pay rent beyond 31.05.2019 as CIRP period
automatically ended on 31.05.2019, is untenable. The Respondents
having continued to utilise the leased premises till date on the
condition of payment of lease rent cannot now seek to disclaim liability.
The matter of resolution of the Corporate Debtor remained pending for
consideration and even liquidation proceedings were kept in abeyance
by the Adjudicating Authority. The Respondents never challenged these
directions and clearly were desirous of resolution of the Corporate
Debtor. The Respondent No. 2 also continued to act as Resolution
Professional and continued to acknowledge and accept the liability of
payment of rent as Insolvency Resolution Costs. The burden of
Insolvency Resolution liquidation of the Corporate Debtor cannot be
cast upon the Applicant. The Applicant is unable to take possession of
the leased premises due to the proceedings under the Code against the
Corporate Debtor and the Respondents are also unwilling to handover
possession. The Respondents are thus, liable to pay the rent for the
same. This is also the intent purpose and spirit of the order dated
31.01.2019. The liability to payment beyond 31.05.2019 was formally
acknowledged and accepted by the Respondents. The Applicant is
already under extreme financial distress. Non-payment of rent will
result in Bankruptcy of the Applicant. Thus, the Respondents have
committed wilful and deliberate disobedience of the order dated
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31.01.2019.
11. Per Contra, Ld. Counsel representing the Respondent No. 2
(Liquidator erstwhile RP) submitted that the Applicant has wrongly
invoked the jurisdiction of this Appellate Tribunal under Rule 11 of
National Company Law Appellate Tribunal, Rules, 2016. This Appellate
Tribunal in the case of Gireesh Kumar Sanghi v. Mr. Ravi Sanghi CA
(AT) (Ins) No. 156 of 2019 held that Section 425 of the Companies Act
empowers the Tribunal and Appellate Tribunal to punish for contempt of
its own order. Thus, the Application under Section 11 is not
maintainable and deserves to be dismissed in limine. It is also
submitted that vide order dated 14.06.2019 the Adjudicating Authority
directed for initiation of Liquidation of the Corporate Debtor and the
Respondent No. 2 is currently acting as its liquidator under Section 34
(1) of the IBC. The same order dated 14.06.2019 has been further
clarified vide order dated 11.06.2021. Once liquidation is initiated,
creditors have to submit their claims in terms of Regulation 16 of
Insolvency and Bankruptcy Board of India (Liquidation Process)
Regulations, 2016. The Respondent No. 2 has issued a public
announcement on 14.06.2021 and has also sent an email dated
03.07.2021 to the Applicant. Pursuant to which the liquidator has also
received the claim from the Applicant. The payment of any outstanding
rental dues which occurred during the CIRP period being an Insolvency
Resolution Process costs would be payable in accordance with Section
53 of the IBC. It is submitted that the order dated 31.01.2019 has
been passed by this Appellate Tribunal and CoC is directed to pay the
rent w.e.f. 01.12.2018 and onwards i.e. up to date of moratorium.
However, no directions were issued against the Respondent No. 2. The
Respondent No. 2 performed all its duties which could have facilitated
compliance of orders and no reason for non-payment of rent can be
attributed to the Respondent No. 2. Thus, it is prayed that the
Application be dismissed against the Respondent No. 2.
12. Ld. Counsel representing the lender banks (Respondent No. 4 to
11, 13, 14, 16 and 17) submitted that as per the order dated
31.01.2019 lender banks were directed to pay lease rent w.e.f.
01.12.2018 onwards up to date of moratorium. Ld. Adjudicating
Authority vide order dated 14.06.2019 initiated the liquidation for the
Corporate Debtor. Thus, the moratorium came to end on 31.05.2019. It
is also pointed out that IBBI has issued a circular No.
IBBI/IP/013/2018 dated 12.06.2018 categorically stated that the costs
incurred after completion of CIRP shall not form part of IRP Costs. No
Application was filed by the RP for extension of CIRP and the
Application bearing CA No. 731 of 2019 was filed by the RP for
liquidation of the Corporate Debtor which was allowed by the
Adjudicating Authority vide an order dated 14.06.2019 and was only
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pending for the appointment of liquidator which was confirmed by the

Adjudicating Authority on 11.06.2021. The lender banks were only
liable to pay lease rental as CIRP costs for six months i.e. from
01.12.2018 to 31.05.2019 @ Rs. 33,81,384/- per month inclusive of
GST. Cumulatively, the total liability towards the lease rental as CIRP
costs for the period of six months' amounts to Rs. 2,02,88,088/- the
said amount for the period of six months was duly paid by the lender
banks as CIRP costs in compliance of the aforesaid orders. The lender
banks were only liable to pay the lease rental as CIRP costs up to the
date of completion of CIRP in terms of Section 5(13) of the IBC r/w
Regulation 31 of the Insolvency and Bankruptcy Board of India
(Insolvency Resolution Process for Corporate Persons) Regulations,
2016 further clause 8(c) of the Circular No. IBBI/IP/013/2018 dated
12.06.2018. It is also submitted that so far as the CIRP came to end on
31.05.2019 whereby the CoC ceased to the moratorium to ended on
31.05.2019. The lender banks were not liable to pay any rent as CIRP
costs for any period thereafter. Thus, the Application is liable to be
dismissed.
13. Ld. Counsel for the Respondent No. 12 representing “M/s Delhi
Safe Despite Company Ltd.” submitted that the rent is a direct costs
and as such rent is the amount of default like any other Operational
Debt. Thus, the Applicant become Operational Creditor. The Hon'ble
Supreme Court had observed in the Judgment of Mobilox Innovations
Pvt. Ltd. v. Kirusa Software Pvt. Ltd., (2018) 1 SCC 353 that the lessor
is an Operational Creditor, here the Applicant is pursuing the pressure
tactics by initiating Contempt proceedings instead of filing claim as
Operational Creditor. It is further submitted that the CoC Member
should not be burden with additional expenses towards the rent. The
CoC members are already struggling to recover the money from the
Corporate Debtor. The Applicant should file his claim before the
Liquidator. Respondent No. 12 is not liable to pay the rent to the
Applicant, as CIRP Regulations 31 to 34 do not provide rent to be
included in the Insolvency Resolution Process costs. It is submitted
that the Respondent No. 12 has no intention to show any disrespect or
dishonour to this Appellate Tribunal. It is further submitted that the
Respondent No. 12 is willing to withdraw its claim before the RP as the
Respondent No. 12 is not able to bear any CIRP costs/rent costs. The
Respondent No. 12 has not disobeyed the order and has not committed
any Contempt. Hence, the Contempt proceedings is liable to be
dismissed.
14. After hearing Ld. Counsels for the parties, we have gone through
the record.
15. The Respondent No. 2 Liquidator (erstwhile RP) raised a
preliminary objection that the Applicant has wrongly filed the
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Application under Rule 11 of NCLAT Rules, 2016. Such Application

should have been filed under Section 425 of the Companies Act, 2013
as held by this Appellate Tribunal in the case of Gireesh Kr. Sanghi v.
Mr. Ravi Sanghi (CA (AT) (Ins) No. 156 of 2019).
16. We have considered this objection, it is not disputed that this
Appellate Tribunal does not have power to punish for contempt of its
own order. The objection is only about the invoking of inherent powers
under Rule 11 of NCLAT Rules, 2016. Mere mentioning a wrong
provision in the Application will not affect the merits of the case and
therefore, we find no substance in this preliminary objection.
17. The Respondent No. 12 M/s Delhi Safe Deposit Company Ltd.
raised a plea that the rent does not come within the definition of
essential supplies. Thus, the rent cannot be part of CIRP costs under
Regulation 31 and 32 of CIRP Regulations.
18. In the Contempt Application, it is not required to advert into the
issue whether the rent of the premises comes within the purview of
CIRP costs or not. No such objection was raised when the order dated
31.01.2019 was passed. However, we have considered this issue. CIRP
costs is defined in Section 5(13) which is as under:—
“Section 5(13) insolvency resolution process costs means—
(a) the amount of any interim finance and the costs incurred in
raising such finance;
(b) the fees payable to any person acting as a resolution
professional;
(c) any costs incurred by the resolution professional in running
the business of the corporate debtor as a going concern;
(d) any costs incurred at the expense of the Government to
facilitate the insolvency resolution process; and
(e) any other costs as may be specified by the Board;
19. Section 14(1)(d) provides that during the moratorium period the
lessor or an owner of the property cannot recover the possession of the
property from the Corporate Debtor. Regulation 31 of the Insolvency
and Bankruptcy Board of India (Insolvency Resolution Process for
Corporate Persons) Regulations 2016 is as under:—
31. Insolvency resolution process costs.
“Insolvency resolution process costs” under Section 5(13)(e) shall
mean-
(a) amounts due to suppliers of essential goods and services
under Regulation 32;
(b) amounts due to a person whose rights are prejudicially
affected on account of the moratorium imposed under section
14(1)(d);
(c) expenses incurred on or by the interim resolution professional
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to the extent ratified under Regulation 33;

(d) expenses incurred on or by the resolution professional fixed
under Regulation 34; and
(e) other costs directly relating to the corporate insolvency
resolution process and approved by the committee.
20. As per Regulation 31 Insolvency Resolution Process costs under
Section 5(13)(e) mean defined in clause (a) to (e). for the present
case, Regulation 31(b) is relevant which provides that amounts due to
a person whose rightsare prejudicially affected on account of the
moratorium imposed under Section 14(1)(d). Due to moratorium period
the lessor could not recover the possession of the property from the
Corporate Debtor. Thus, the right of lessor to recover rent are affected
on account of moratorium. Therefore, the lessor is entitled to recover
the rent and which shall include in CIRP costs.
21. Thus, we find no substance in the argument that the rent cannot
be included in the CIRP costs.
22. Now, the issue for consideration before us is whether the
Respondents have wilfully disobeyed the order passed by this Appellate
Tribunal on 31.01.2019?
23. The Adjudicating Authority vide order dated 21.12.2018 directed
the CoC to pay the rent w.e.f. 01.12.2018 to the Applicant against that
order CoC has filed CA (AT) (Ins) No. 104 of 2019 before this Appellate
Tribunal. The Appeal is disposed of vide order dated 31.01.2019 with
the direction that the CoC to pay the rent w.e.f. 01.12.2018 onwards
i.e. up to date of moratorium.
24. We have considered whether the CoC has paid the rent to the
Applicant since 01.12.2018 up to the moratorium period.
25. According to the Applicant the moratorium period shall come to
end when the liquidation is completed. Whereas, as per the
Respondents the moratorium period shall come to end when the
Adjudicating Authority approves the resolution plan or passed an order
for liquidation of the Corporate Debtor. The Adjudicating Authority vide
order dated 14.06.2019 order for liquidation. The Respondents have
already paid rent since 01.12.2018 upto the moratorium period.
26. Now, we have considered the period of moratorium. Section 5
(12) defines the Insolvency commencement date means the date of
admission of an application for initiating CIRP by the Adjudicating
Authority under Section 7, 9 or 10 as the case may be. Section 13
provides that the Adjudicating Authority, after admission of the
application under Section 7, 9 or 10 shall declare a moratorium for the
purposes referred to in Section 14. Section 14 of the IBC reads as
under:—
“Section 14 : Moratorium.
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14. (1) Subject to provisions of sub-sections (2) and (3), on the

insolvency commencement date, the Adjudicating Authority shall by
order declare moratorium for prohibiting all of the following, namely:
—
(a) the institution of suits or continuation of pending suits or
proceedings against the corporate debtor including execution of
any judgment, decree or order in any court of law, tribunal,
arbitration panel or other authority;
(b) transferring, encumbering, alienating or disposing of by the
corporate debtor any of its assets or any legal right or
beneficial interest therein;
(c) any action to foreclose, recover or enforce any security interest
created by the corporate debtor in respect of its property
including any action under the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002;
(d) the recovery of any property by an owner or lessor where such
property is occupied by or in the possession of the corporate
debtor.
Explanation.—For the purposes of this sub-section, it is hereby
clarified that notwithstanding anything contained in any other law for
the time being in force, a license, permit, registration, quota,
concession, clearances or a similar grant or right given by the
Central Government, State Government, local authority, sectoral
regulator or any other authority constituted under any other law for
the time being in force, shall not be suspended or terminated on the
grounds of insolvency, subject to the condition that there is no
default in payment of current dues arising for the use or continuation
of the license, permit, registration, quota, concession, clearances or
a similar grant or right during the moratorium period;
(2) The supply of essential goods or services to the corporate
debtor as may be specified shall not be terminated or suspended or
interrupted during moratorium period.
(2A) Where the interim resolution professional or resolution
professional, as the case may be, considers the supply of goods or
services critical to protect and preserve the value of the corporate
debtor and manage the operations of such corporate debtor as a
going concern, then the supply of such goods or services shall not be
terminated, suspended or interrupted during the period of
moratorium, except where such corporate debtor has not paid dues
arising from such supply during the moratorium period or in such
circumstances as may be specified.
(3) The provisions of sub-section (1) shall not apply to —
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(a) such transactions, agreements or other arrangements as may

be notified by the Central Government in consultation with any
financial sector regulator or any other authority;]
(b) a surety in a contract of guarantee to a corporate debtor.]
(4) The order of moratorium shall have effect from the date of
such order till the completion of the corporate insolvency resolution
process:
Provided that where at any time during the corporate
insolvency resolution process period, if the Adjudicating Authority
approves the resolution plan under sub-section (1) of section 31
or passes an order for liquidation of corporate debtor under
section 33, the moratorium shall cease to have effect from the
date of such approval or liquidation order, as the case may be.
27. As per Section 5(12) CIRP commenced when the Application
under Section 7, 9 or 10 is admitted. Section 13(1) provides that after
admission of such Application a moratorium for the purposes referred to
in Section 14 shall be declared and Section 14(4) provides that order of
moratorium shall have effect from the date of such order till the
completion of the corporate insolvency resolution process, provided that
where at any time during the corporate insolvency resolution process
period, if the Adjudicating Authority approves the resolution plan under
sub-section (1) of section 31 or passes an order for liquidation of
corporate debtor under section 33, the moratorium shall cease to have
effect from the date of such approval or liquidation order, as the case
may be.
28. Ld. Counsel for the Applicant has advanced the argument that as
per the Section 33(5) of the Code, the moratorium exists both at the
stage of Insolvency Resolution Process and also upon passing of
liquidation order as per Section 33(5) of the Code. Thus, moratorium
continues till date.
29. Section 14(4) is quite clear and there is no ambiguity that from
the date of initiation of the liquidation order under Section 33, the
moratorium shall cease to have effect, so far as the Section 33(5) is
concerned, it provides that subject to Section 52 when a liquidation
order has been passed no suit or other legal proceedings shall be
instituted by or against the Corporate Debtor, provided that suit or
other legal proceedings may be instituted by the Liquidator on behalf of
the Corporate Debtor with the prior approval of the Adjudicating
Authority. It means after initiation of liquidation order no suit or other
legal proceedings shall be instituted by or against the Corporate
Debtor. However, during the liquidation period the lessor can file its
claim before the Liquidator. The Applicant has already filed his claim
before the Liquidator. Therefore, we find no substance in the argument
of Ld. Counsel for the Applicant.
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30. In the present case, the CIRP commenced on 25.07.2019 when

the Application under Section 9 was admitted and moratorium under
Section 13(1) has declared. Subsequently, the RP has filed the
Application for liquidation. The Ld. Adjudicating Authority vide order
dated 14.06.2019 allowed the Application and liquidation of the
Corporate Debtor was initiated and the assets of the Corporate Debtor
were put for liquidation. Thus, as per the order dated 31.01.2019 the
CoC is required to pay rent since 01.12.2018 till 13.06.2019 i.e. just
before initiation of liquidation of the Corporate Debtor.
31. It is true that the Adjudicating Authority vide order dated
14.06.2019 allowed the Application of RP and passed an order of
liquidation of Corporate Debtor as no resolution plan has been received
and 270 days are over. The Liquidation order is passed on 14.06.2019
this fact is again reiterated by the Adjudicating Authority in its order
dated 11.06.2021.
32. Pursuant to the order of liquidation dated 14.06.2019 the RP
who subsequently appointed as liquidator has issued a public
announcement on 14.06.2021 and has also sent an email dated
03.07.2021 to the Applicant. Pursuant to which he has also received
the claim from the Applicant.
33. Now we have considered whether the CoC has paid the rent
since 01.12.2018 to 13.06.2020 i.e. up to moratorium period?
34. We have directed the Respondent No. 2 (Liquidator erstwhile RP)
to file the affidavit in regard to what rent of the Applicant has been paid
during the CIRP specifying the period. In compliance the Liquidator
(Respondent No. 2) has filed the additional affidavit Diary No. 45851
dated 21.08.2021. In this affidavit it is stated that since 26.06.2019 till
11.10.2019 the rent paid by the RP is total Rs. 52,35,309/-
subsequently as per the direction of the Adjudicating Authority the
members of CoC have directly made payment to the Applicant since
11.12.2019. In the affidavit, in a chart, the name of Financial Creditor
date and amount is shown the total amount paid to the Applicant
comes to Rs. 2,49,76,152/-. Thus, the total amount of Rs. 3,02,11,464/
- has been paid to the Applicant. The Applicant has not filed any
affidavit disputing the facts and the amount stated in additional
affidavit of the liquidator (Respondent No. 2). Thus, it is proved that
the Applicant has received total amount of Rs. 3,02,11,464/- after
passing of the order dated 31.01.2019.
35. As per the Applicant the current rate of two warehouses is Rs.
35,73,270/- including GST. As per the order of this Appellate Tribunal
the Applicant is entitled rent 01.12.2018 up to moratorium period i.e.
13.06.2019 just before initiation of liquidation. It comes to Rs.
2,29,88,037 for 6 months 13 days. The Applicant has already received
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the amount of Rs. 3,02,11,464/- as shown in the Affidavit of the

Respondent No. 2. Thus, the Applicant has already received the rent as
per the order of this Appellate Tribunal.
36. It is not out of context to refer that during the course of
argument. It is informed that the suspended board of directors of the
Corporate Debtor have assailed the order dated 11.06.2021 passed by
the Adjudicating Authority in CA (AT) (Ins) No. 438 of 2021 before this
Appellate Tribunal and in this Appeal the Judgment is reserved. In the
present matter, we have reserved the Judgment on 25.11.2021.
Subsequently, the Coordinate Bench of this Appellate Tribunal has
pronounced the Judgment in CA (AT) (Ins) No. 438 of 2021 on
29.11.2021. The operative portion of the Judgment i.e. Para Nos. 42 to
45 are as under:—
42. In fact, on 19.05.2021, IA No. 2034/2021 was heard by the
‘Adjudicating Authority’ and that the orders were reserved. The
Respondent in May, 2021 filed IA No. 2946/2021 praying inter alia
to review the orders dated 14.06.2019 and 04.07.2019 passed by
the ‘Adjudicating Authority’ and on 09.06.2021 the Respondent had
prayed for the withdrawal of IA No. 2946/2021, since the
‘Adjudicating Authority’ had observed that it has ‘no power to
review’ its own order.
43. In the instant case, on going through the impugned order
dated 11.06.2021 in IA No. 2034/2021 in (IB) 702(ND)/2018 this
Tribunal finds that the ‘Adjudicating Authority’ at para 12 had
observed that it has no power to review its own order but traversed
beyond its purview and reviewed the order dated 04.07.2019 in CA
No. 827/2019 by concluding that once a liquidation order was
passed there is no scope to recall, which is contrary to the order
passed by it on 04.07.2019 where it observed that the pending
application will be disposed and then liquidation be directed.
44. Moreover, it cannot be forgotten that CA No. 731/2019 filed
by the Respondent (liquidation application) is pending before the
‘Adjudicating Authority’ as seen from the order dated 04.07.2019
wherein notice was issued to the Appellant and till date the said
application is pending for determination. Apart from that, it is to be
borne in mind that the Respondent, before the ‘Adjudicating
Authority’ had not made any request to review the order dated
04.07.2019. When that be the factual scenario, the impugned order
passed by the ‘Adjudicating Authority’ in IA No. 2034/2021 in (IB)
702(ND)/2018 by the ‘Adjudicating Authority’ dated 11.06.2021
bristles with legal infirmity and the same is held by this Tribunal as
one without jurisdiction in the eye of Law. Therefore, this ‘Tribunal’
in furtherance of ‘Substantial Cause of Justice’ interferes with the
aforesaid ‘impugned order’ and sets aside the same. Consequently
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the Appeal succeeds.

CONCLUSION
45. In fine, the Comp App (AT)(Ins) 438/2021 is allowed. No
costs. The ‘Adjudicating Authority’ (National Company Law Tribunal,
New Delhi II) is directed to restore the IA No. 2034/2021 in CP(IB)
No. 702(ND)/2018 to its file and to pass fresh orders on merits, in
accordance with law, of course, after providing adequate opportunity
of hearing to both sides, by permitting them to raise all factual and
legal pleas as expeditiously as possible.
37. In the aforesaid Judgment it is directed that the Adjudicating
Authority to again consider the application for liquidation. However, this
Judgment shall not affect the merits of this contempt case because on
the date of filing of this Application the order of liquidation dated
14.06.2019 and 11.06.2021 are in existence, therefore, in the light of
these orders, we have examined this contempt case and we hold that in
the light of these orders the moratorium is ceased on 13.06.2019 and
the Respondents have paid the rent as per the order of this Appellate
Tribunal till order of moratorium.
38. We are thus satisfied that no case has been made out to punish
the Respondents for Contempt. Thus, the Contempt Application is
disposed of. No order as to costs.
———
†
Principal Bench at New Delhi

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