2018 (2) TMI 1838 - AT - Insolvency and Bankruptcy

Intervener permitted in insolvency case with focus on penal provisions under Section 65

SREI Infrastructure Finance Ltd. Versus Right Tower Pvt. Ltd. & Anr.

The Tribunal allowed the Intervener to participate in insolvency proceedings, emphasizing the applicability of penal provisions under Section 65 of the ... Fast Track Corporate Insolvency Resolution Process - HELD THAT:- Any person may intervene and may bring the facts to the notice of the Adjudicating Authority. So far as the Respondent (Intervener) is concerned, we leave the question open for Adjudicating Authority to decide the issues as raised and alleged by the 2nd Respondent (Intervener) keeping in mind the question of maintainability of the application as raised by the Appellant. The Appellant has already served the copy of the paper book to the learned counsel for the 2nd Respondent (Intervener) which includes petition under Section 55 to 58 and therefore the service of petition under Section 55 to 58 to the 2nd Respondent (Intervener) stands complied. The case be remitted back to the Adjudicating Authority to decide all the issues including the question of maintainability of the intervention petition keeping in mind the allegations made therein and the penal provisions including Section 65 as referred to above. Issues:1. Intervention of a third party in insolvency proceedings.2. Locus standi of an intervener in insolvency resolution process.3. Application of penal provisions under Section 65 of the Insolvency and Bankruptcy Code.Issue 1: Intervention of a third party in insolvency proceedingsThe Appellant (Financial Creditor) filed an appeal against an order passed by the Adjudicating Authority, where an Intervener requested a copy of the petition to file a detailed reply. The Financial Creditor objected to the intervention, claiming the dispute was between them and the corporate debtor. The Intervener argued that the petition might be collusive and aimed at defrauding others. The Tribunal ordered the petitioner to serve a copy to the Intervener for a reply and set deadlines for responses, allowing the Intervener to participate in the proceedings.Issue 2: Locus standi of an intervener in insolvency resolution processThe Appellant contended that the Intervener had no standing to maintain a petition as they were not a shareholder, creditor, debtor, financial creditor, or corporate debtor. However, the Intervener cited Section 65 of the Insolvency and Bankruptcy Code, which allows penalties for fraudulent initiation of insolvency proceedings. The Intervener sought to bring certain facts to the Adjudicating Authority's attention to potentially initiate proceedings and penalize the concerned person under Section 65, regardless of their direct involvement in the insolvency process.Issue 3: Application of penal provisions under Section 65 of the Insolvency and Bankruptcy CodeThe Tribunal clarified that the Corporate Insolvency Resolution Process could be initiated under various sections of the Code, including the Fast Track Corporate Insolvency Resolution Process. Section 65, which covers penalties for fraudulent initiation of insolvency proceedings, applies not only to certain sections but also to the Fast Track process. The Tribunal left it to the Adjudicating Authority to determine the issues raised by the Intervener, considering the maintainability of the application raised by the Appellant. The case was remitted back to the Adjudicating Authority to decide all issues, including the intervention's maintainability and the application of penal provisions under Section 65. The appeal was disposed of with these observations.