M/Sunflag Iron And Steel Co. Ltd., ... vs Ms J. Poonamchand And Sons, Mumbai
2023 Latest Caselaw 5391 Bom

                                                         1                                 919.CAO.769-2023.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR
                 CIVIL APPLICATION (CAO) NO. 769 OF 2023
                                    IN
              MISC. CIVIL APPLICATION (ARBN) NO. 374 OF 2020
                        ( M/Sunflag Iron & Steel Co. Ltd., Nagpur
                                          Vs.
                         Ms. J.Poonamchand & Sons, Mumbai )
Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. A.C. Dharmadhikari, Advocate for the Applicant.
                                  Mr. R.M. Bhangde, Advocate for the Non-applicant.

                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 9th JUNE, 2023 Heard.

2. This is an application for clarification of the judgment dated 05.06.2023 filed by the non-applicant the original respondent. Since the proceedings are pending before the National Company Law Tribunal (for short "N.C.L.T.") under Section 9 (1) of The Insolvency and Bankruptcy Code, 2016, (for short "I.B. Code"), by the said application, it is sought to be clarified that the observation and finding rendered in the judgment referred to shall not come in the way of N.C.L.T. and the proceedings shall be decided by its own merits.

3. Mr. Dharmadhikari, learned counsel for the applicant, vehemently opposed the application, contending that no clarification is required and the application, is in fact one for review under the garb of clarification. He places reliance upon Kalabharati Advertising Vs. Hemant Vimalnath Narichania And

2 919.CAO.769-2023.odt

Others, (2010) 9 SCC 437, which states that where the statutory provision is absent, there cannot be any review altogether under the garb of a clarification. It is further contended, that the finding rendered by this Court is sought to be rendered a nullity under the garb of this clarification, and therefore, same needs to be rejected.

4. It is an undisputed position, that the proceedings under the I.B. Code filed by the non- applicant are pending before the N.C.L.T. The provisions of the I.B. Code, require the adjudicating authority to record its satisfaction regarding the existence of the dispute/default, which is a finding which is to be independently rendered by the N.C.L.T. having regard to the material placed before it. It is therefore trite, that proceedings before the N.C.L.T. have to be decided on its own merits and would indeed be so done is the presumption of this Court. The findings rendered herein, are limited to the purpose of deciding whether for the appointment of an Arbitrator, a dispute is in existence or not, and therefore, would not in any manner impinge upon the jurisdiction of the N.C.L.T. to independently arrive at a finding regarding its satisfaction as to any default. In that view of the matter, I do not see any reason for any clarification.

5. The application is dismissed.

6. Steno copy is granted.

JUDGE SD. Bhimte