Ashok Bhushan, J:
1. This Appeal has been filed against an Order dated 02.02.2023 passed in I.A./656/ND/2023 in IB/571/PB/2021 by National Company Law Tribunal, New Delhi, Court IV (hereinafter referred to as “The Adjudicating Authority”). The Order passed is as follows:
“Heard the preliminary submissions made by the Ld. Counsel for the petitioner and the Ld. Counsel for the Resolution Professional as well as the Ld. Counsel for the CoC. This matter requires detailed considerations of various provisions of IBC. In order to determine the entitlement for the relief sought in this matter. Further, as the respondents are present and received advance copy of the petition and also made submissions during the course of the hearing, there is no need to issue any notice and requirements of notice is dispensed with. No specific ad-interim-relief is granted in this matter as prayed for in the application. However, in order to ensure that the applicants' right’ are not adversely affected, the resolution passed in the 5th CoC meeting of the Corporate Debtor vide Item No. B2 may not be further acted upon by the respondents. One week time is granted for filing the reply and thereafter three days’ time is granted for filing the rejoinder if any.
Let the matter be fixed for hearing on 15.02.2023.”
2. IA/656/2023 was filed by Respondent No. 1-Aria Hotels and Consultancy Services Pvt. Ltd. in Corporate Insolvency Resolution Process which has been initiated by the Adjudicating Authority for Corporate Debtor-Asian Hotels (West) Limited. The Respondent-Aria Hotels & Consultancy Services Pvt. Ltd. is a subsidiary of Corporate Debtor. The CIRP against the Corporate Debtor commenced by Order dated 16.09.2022. The Committee of Creditors held its various Meetings. On 14th January, 2023, Notice for 05th CoC Meeting was circulated. 05th CoC Meeting held on 16th January, 2023 in which Resolution was passed in Item No. B2 to change the management of the Aria Hotels and Consultancy Services Pvt. Ltd. a subsidiary company of the Corporate Debtor. The Resolution Professional was authorized by the Committee of Creditors to take all steps necessary that may be required for changing the management of “ARIA”, including nominating directors to the Board of ARIA. On the resolution, e-voting took place.
3. Application I.A./656/2023 was filed before the Adjudicating Authority praying for following reliefs:
“A. Quash and/or set aside the Illegal resolutions (as defined above) passed in the 5th COC meeting of the Corporate Debtor i.e., Item No. B2;
B. Quash the illegal decision of the COC as passed in the 5th COC meeting as Item No. A5;
C. Pass an ex-parte ad interim order staying the decision and/or Resolutions passed in the 5th COC meeting for change of management of the Applicant No. 1 i.e., Item No. A5 and Item No. B2;
D. Pass an ex-parte ad interim order in terms of prayer A and B;
E. Pass any other order/orders as may as deemed necessary in the facts and circumstances of the case.”
4. The Application was taken on 31st January, 2023 and were heard on 01st February, 2023 and the Adjudicating Authority fixed 2nd February, 2023 for continuation of arguments. On 2nd February, 2023, Impugned Order has been passed. Aggrieved against the Order, the Appellant who is member of the Committee of Creditors of the Corporate Debtor has come up in this Appeal.
5. Mr. Ramji Srinivasan, Learned Sr. Counsel for the Appellant challenging the Impugned Order submits that Adjudicating Authority having recorded in the Order that no specific ad-interim-relief is being granted, directed not to act upon resolution Item No. B2, for which no reasons have been given in the Order. It is submitted that when the Adjudicating Authority has fixed the matter for hearing on 15.02.2023 there was no occasion to pass any ad-interim-order. Learned Sr. Counsel submits that although there are various submissions on the merit to oppose the I.A. 656/2023 but application being pending this tribunal may not enter into those submissions at this stage.
6. Learned Sr. Counsel for the Respondent-Mr. Krishnendu Datta and Learned Counsel-Mr. Abhijeet Sinha refuting the submissions of Learned Sr. Counsel for the Appellant submits that the Order dated 02.02.2023 was passed after hearing elaborate arguments by the Adjudicating Authority on 01.02.2023 and 02.02.2023. On 15.02.2023 which was a date fixed, the Appellant took one day time for filing Reply hence hearing could not take place and now the Adjudicating Authority has fixed the Application for hearing on 01st and 2nd March, 2023. The direction of the Adjudicating Authority not to take steps to implement the resolution is only to protect the status quo, the order has been passed by the Adjudicating Authority in the midst of the hearing which needs no interference in this Appeal.
7. We have considered the submissions of Learned Sr. Counsel for the parties and have perused the record.
8. We have noticed the prayers which have been made in the IA/656/2023. The impugned order does not grant any interim relief in terms of any of the reliefs prayed in the I.A./656/2023. The limited direction issued by the Adjudicating Authority is “however, in order to ensure that the applicant’s rights are not adversely affected, the resolution passed in the 5th CoC meeting of the Corporate Debtor vide Item No. B2 may not be further acted upon by the Respondents”. Parties in the application were heard on 01st and 2nd February, 2023 which is apparent from the proceedings brought before this Tribunal and fixed 15.02.2023 for hearing which hearing could not take place and date was fixed by the Adjudicating Authority for hearing on 01st and 2nd March, 2023 on the application. All contentions of the parties are yet to be considered and decided by the Adjudicating Authority on I.A. 656/2023 and since the hearing on 15.02.2023 could not take place and time was sought by the appellant for filing the reply which is clear from the Order dated 15.02.2023 which is to the following effect:
“Heard the submissions made by the Ld. Counsels for both the parties. The Ld. Counsel for the CoC has submitted that he will take steps to file the reply during the course of the day. The Ld. Counsel for the RP is also present and submitted that he has filed his reply yesterday and the same is reflected on the e-portal of the Tribunal. Ld. Counsel for the applicant has prayed for grant of three days’ time to file the rejoinder. Time prayed for is granted. The interim order granted in this matter shall continue till the next date of hearing.….”
9. No exception can be taken to the order passed by the Adjudicating Authority on 15.02.2023 extending the interim order and fixing the next date on 01st and 2nd March, 2023. We thus are of the view that at the stage when the Adjudicating Authority is seized of the application I.A. 656/2023 and had already fixed date on 1st and 2nd March, 2023 for hearing of the application, this Appeal need not to be entertained.
10. Learned Counsel for both the parties has relied on Judgment of Hon’ble Supreme Court in [1990 (Supp.) SCC 727] “Wander Ltd. And Another Vs. Antox India P. Ltd.” where Hon’ble Supreme Court laid down following in paragraph 14:
“14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant of refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonable and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court’s exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph”
11. Hon’ble Supreme Court in the above judgement had laid down that in exercise by the Court if it is shown to be exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions, Appellate Court can interfere. We do not find that the exercise of jurisdiction of the Adjudicating Authority in the present case is arbitrary, capricious, or perverse.
12. It goes without saying that adjudicating authority while proceeding to decide IA/656/2023 on merits, the ad-interim-order passed by the Adjudicating Authority shall not in any manner influence the decision on the application on merits.
The Appeal is disposed of, with these observations.
