BHUSHAN POWER AND STEEL LTD Vs. DIRECTOR OF INDUSTRIES-CUMCHAIRMAN, MICRO AND SMALL ENTERPRISES FACILITATION COUNCIL

JUDGEMENT

(1.) Mr. Mohanty, learned senior advocate appears on behalf of petitioner and in continuation of his submissions recorded in order dtd. 21/3/2023, demonstrates from his client's I.A. no.2813 of 2023 that opposite party no.2 (supplier) was operational creditor and its position considered in the resolution plan (RP) approved by the National Company Law Tribunal (NCLT) on its judgment dtd. 5/9/2019. He demonstrates from paragraph 5 of the application that pursuant to said judgment, on opposite party no.2 having had a claim of Rs.26,79,70,808.27 the RP accepted Rs.22,01,84,363.00. Consequently, his client having stepped into shoes of the management of the buyer, paid 47.70 % of the accepted amount, being Rs.10,50,27,941.00. He submits the payment was made on 24/3/2022 vide Unit Transaction Reference (UTR) no. SBIN 422083896125. The judgment of NCLT has become final on no challenge mounted against it. The supplier having been paid the money in terms of the plan, there was no relevance of any dispute referred under Micro, Small and Medium Enterprises Development Act, 2006. Impugned award dtd. 20/2/2019, though precedes judgment dtd. 5/9/2019 of the NCLT, but is required to be interfered with on judicial review by reason of participation of opposite party no.2 in the resolution process and having had accepted the payment. He relies on Sec. 31, 60(5) and 238 in Insolvency and Bankruptcy Code, 2016 to submit, interference is necessary.

(2.) With regard to requirement under Sec. 19 in the 2006 Act, on pre-deposit, he relies on judgments of the Supreme Court in;

(3.) Mr. Das, learned senior advocate appears on behalf of opposite party no.2 (supplier). He submits, he is not questioning the power of judicial review vested with the High Courts. His reliance is on Sec. 19 mandating a requirement of pre-deposit to be made before invoking the jurisdiction. He submits, Sec. 19 includes the High Court, in use of the word Court, to mandate that there shall not be entertained any application unless the appellant (not being a supplier) has pre-deposited. He relies on judgment dtd. 8/10/2021 of the Supreme Court in Civil Appeal no.6252 of 2021 (Gujarat State Disaster Management Authority v. M/s. Aska Equipments Limited) paragraphs 9, 10 and 11.