www.taxguru.in IN THE HIGH COURT OF AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

MONDAY, THE 13TH DAY OF JULY 2020 / 22ND ASHADHA, 1942

OP(C).No.484 OF 2020

M.A.NO.7/KOB/2019 IN IBA 258/CHENNAI BENCH DATED 21.10.2019 ISSUED BY NCLT, BENCH

PETITIONER/S:

1 P.X.XAVIER AGED 57 YEARS S/O.LATE P.O.XAVIER, WORKMAN OF EXCEL GLASSES LTD., UDAYANAGAR , RESIDING AT PALAKKAPPILLIL HOUSE, CHERANELLOOR PO, COCHIN-682034, KERALA.

2 MR. K.JOSEPH, AGED 56 YEARS S/O.MR.KURIAKOSE, WORKMAN OF EXCEL GLASSES LTD., UDAYANAGAR ALAPPUZHA, RESIDING AT KIZHAKKE VALEZHATHU HOUSE, K.R.PURAM PO, PALLIPPURAM, ALAPPUZHA-688541, KERALA.

3 MR. SUNIL KUMAR P.R., AGED 52 YEARS S/O.LATE MR.P.N.RAGHAVAN, RESIDING AT PUTHANVEEDU HOUSE, , EAST KADUNGALLOOR, NEAR IOC PETROL PUMP, UC COLLEGE PO, -683102, KERALA.

4 MR. SANIL P.D., AGED 57 YEARS S/O.LATE MR.RAJAN, RESIDING AT PULIMOOTTIL HOUSE, KALAPURA WARD, ALAPPUZHA NORTH PO, 688007, KERALA.

5 MR. JOSEPH O.J., AGED 49 YEARS S/O.CHACKO JOSEPH, RESIDING AT NJARAKKATTU HOUSE, K.R.PURAM PO, , ALAPUZHA -688541, KERALA. www.taxguru.in

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6 MR. T.N.SETHU MADHAVAN, AGED 56 YEARS S/O.LATE T.M.NATES BABU, NIKARTHIL HOUSE, POONTHOPPU WARD, (NEAR KUMMADY BRIDGE), ALAPPUZHA -688006, KERALA.

7 MR. SHIBU BHASKARAN, AGED 47 YEARS S/O.LATE K.BHASKARAN, RESIDING AT SHEENA NIVAS, VALAMANGALAM NORTH, THURAVOOR P.O., CHERTHALA-688532, KERALA.

8 MR. SIBY A., AGED 51 YEARS S/O.LATE ANTONY P.T., RESIDING AT PUTHANPURAYIL HOUSE, THANEERMUKKAM PO, CHERTHALA-688527, KERALA.

9 MR. P.P.SREELAL, AGED 57 YEARS S/O.LATE C.T.PALANI, PARAPPALLY HOUSE, PATHIRAPALLY P.O., ALAPUZHA-688521, KERALA.

10 MR. SUGUNAN K., AGED 54 YEARS S/O.MR.KUTTAN V.K., RESIDING AT KOCHUVELI HOUSE, PALLIPPURAM P.O., CHERTHALA, ALAPUZHA-688541, KERALA.

11 MR. SURESH BABU K.K., AGED 52 YEARS S/O.LATE MR. K.K.KUMARAN, RESIDING AT KURUDAMPARAMBU HOUSE, THIRUMALA BHAGAM P.O., THURAVOOR, CHERTHALA, ALAPPUZHA-688540.

12 MR. VINOD P.R., AGED 47 YEARS S/O.N.G.RAJAPPAN, RESIDING AT PATTACHIRA HOUSE, THIRUNELLOOR PO, CHERTHALA-688541. www.taxguru.in

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13 MR.AJAYKUMAR C.B., AGED 48 YEARS S/O. MR. BALAKRISHNA M., RESIDING AT CHERUVALLI HOUSE, PARAYIL, PATTANAKKADU PO, CHERTHALA, ALAPPUZHA-688531.

14 MR. BIJU R., AGED 43 YEARS S/O.MR. N.G.RAJAPPAN, RESIDING AT PATTACHIRA HOUSE, THIRUNALLOOR PO, CHERTHALA, ALAPPUZHA-688541.

15 MR. CHARLEY LOPEZ, AGED 57 YEARS S/O. LATE MR. PHILIP LOPEZ, RESIDING AT THYPARAMBIL HOUSE, NEAR COLLECTOR'S BUNGALOW, SEA VIEW-WARD, BAZAR PO, ALAPPUZHA-688012.

16 MR.DINESAN V., AGED 55 YEARS S/O.LATE T.O.VASU, RESIDING AT THALIYADIYIL HOUSE, VANASWARGAM, , MUHAMMA PO, -688525, ALAPPUZHA, KERALA.

17 MR. UNNIKRISHNAN K.K., AGED 57 YEARS S/O.KRISHNAN K.K., RESIDING AT KIZHIPPILLY HOUSE, VIJAYA NAGAR, VENDOR, ALAGAPPA NAGAR P.O., AMBALLOOR, -680302, KERALA.

18 MR.JOSSY AMBROSE, AGED 46 YEARS S/O.LATE A.V.AMBROSE, RESIDING AT ANITHOTTATHIL HOUSE, PO, KOTHNALLOOR, - 686603, KERALA.

19 MR. NALAN KUNJU, AGED 54 YEARS S/O.LATE K.V.RAJAPPAN, RESIDING AT NARAYANA VELY HOUSE, MUHAMMA PO, 688525, ALAPPUZHA, KERALA. www.taxguru.in

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20 MR. NOBI K.S., AGED 42 YEARS S/O.SARANGADHARAN, RESIDING AT KOLLAMVELI HOUSE, MUHAMMA PO, 688525, ALAPPUZHA, KERALA.

21 MR. PIOUS C.A., AGED 53 YEARS S/O. LATE C.T.AUGUSTINE, RESIDING AT CHANAYIL HOUSE, POICKATTUSSERY, CHENGAMANAD PO, 683578, ERNAKULAM, KERALA.

22 MR.RENJAN T.D., AGED 50 YEARS S/O.LATE T.K.DAMODHARAN, RESIDING AT THOTTASSERIL HOUSE, MUHAMMA PO, 688525, ALAPPUZHA, KERALA.

23 MR. K.N.GOPALAN, AGED 57 YEARS S/O.NANU ACHARY, RESIDING AT KUNNUKANDAM HOUSE, MUTTAR PO, ALAPPUZHA-689574, KERALA.

24 JOSE K.J., AGED 57 YEARS S/O.LATE K.M.JOSEPH, RESIDING AT KOLLASSERRIL HOUSE, PALLIPURATHUSSERRY, -686606, KOTTAYAM DISTRICT, KERALA.

25 SEBASTIAN K.M., AGED 52 YEARS S/O.LATE MATHAI, RESIDING AT KARIYIL HOUSE, KADAKARAPALLY P.O., CHERTHALA, ALAPUZHA, 688529, KERALA.

26 GOPALAKRISHNA PILLAI V.N., AGED 63 YEARS S/O.GOPALA KURUP, RESIDING AT KARINCHATTA KUZHY, CHETTIKKAD MS PO, PATHIRAPILLY, ALAPUZHA -688521. www.taxguru.in

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27 GEORGE DEVASSIA, AGED 53 YEARS S/O.LATE M.P.DEVASSIA, RESIDING AT MULACKAL HOUSE, THYCATTUSSERRY P.O., CHERTHALA, ALAPPUZHA-688528, KERALA.

28 UMASANKAR P.K., AGED 50 YEARS S/O.LATE MR. KRISHNANKUTTY S., RESIDING AT PADICAPARAMBIL HOUSE, THYCATTUSSERY P.O., CHERTHALA, ALAPPUZHA -688528, KERALA.

BY ADVS. SMT.K.LATHA SMT.JESSY MANUEL

RESPONDENT/S:

1 RAVINDRA CHATURVEDI (LIQUIDATOR OF EXCEL GLASSES), C/O.PAREKH SHA AND LODHA, 31E, BKC CENTRE, LAXMI INDUSTRIAL ESTATE, NEW LINK ROAD, ANDHERI (W), MUMBAI-400053.

2 NATIONAL COMPANY LAW TRIBUNAL, KOCHI BENCH, OFFICE AT KUNNUMPURAM, VAZHAKKALA, KOCHI, KERALA-682021, REPRESENTED BY ITS REGISTRAR/SECRETARY.

3 EXCEL GLASSES LTD., UDAYANAGAR , ALAPPUZHA, PATHIRAPPILLY P.O., 688521, REPRESENTED BY ITS MANAGING DIRECTOR.

4 JAIN JAGAWAT KAMDAR AND COMPANY, CHARTERED ACCOUNTANTS, CORPORATE OFFICE AT 70, NEW ITWARA RD., ITWARA, IBRAHIMPURA, PEER GATE AREA, BHOPAL, MADHYA PRADESH-462001.

5 REGIONAL JOINT LABOUR COMMISSIONER, REGIONAL JOINT LABOUR COMMISSIONER OFFICE, KAANKATHU MUKKU, , KERALA-691013. www.taxguru.in

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6 DISTRICT LABOUR OFFICER, DISTRICT LABOUR OFFICE, THONDANKULANGARA, THATHAMPALLY, ALAPPUZHA, KERALA-688013.

7 STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY TO THE , SECRETARIAT, -695001.

8 EXCEL GLASSES EMPLOYEES ASSOCIATION CITU, REPRESENTED BY ITS SECRETARY MR. RAJESH JOSEPH, KIZHAKKE CHIRAYIL, AMALAPURAM P.O., ARIYAD, ALAPPUZHA-688013.

9 EXCEL GLASSES WORKERS CONGRESS (INTUC), REPRESENTED BY ITS SECRETARY, MR.ANIL KUMAR P.G., PUTHAN THOTTUNGAL HOUSE, PATHIRAPALLY PO, ALAPPUZHA, 688013.

10 EXCEL GLASSES EMPLOYEES UNION (AITUC), REPRESENTED BY ITS SECRETARY, MR. S.PRASAD, KANDATHIL HOUSE, NALAMADAM, AVALU KUNNU PO, ALAPPUZHA-688013.

11 EXCEL GLASSES WORKING EMPLOYEES ASSOCIATION (BMS), REPRESENTED BY ITS SECRETARY SHRI. M.S.SREEKUMAR, MANNAM HOUSE, KATTUKKATTIL, NEAR TODDY SHOP, ALAPPUZHA-688013.

12 EXCEL GLASSES LABOUR UNION (UTUC/B), REPRESENTED BY ITS SECRETARY SHRI.SANTOSH KUMAR, KAMALALYAM, KALAVOOR PO, ALAPPUZHA-688013.

R1 BY ADV. SRI.G.HARIKUMAR (GOPINATHAN NAIR) R1 BY ADV. SHRI.AKHIL SURESH R2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF www.taxguru.in

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OTHER PRESENT:

ADV.SRI.G.HARIKUMAR FOR R1,ADV. SRI.P.VIJAYAKUMAR, ASG FOR R2 SRI.M.I.JOHNSON,SR.GP FOR R5 TO R7.

THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 13.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: www.taxguru.in

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JUDGMENT

The first prayer in this Original

Petition is to set aside Ext.P7 passed by the National Company Law Tribunal ordering liquidation of the company under Section

33(1)(a) of the Insolvency and Bankruptcy

Code, 2016 (for short, 'the Code'). The petitioner also sought for a direction to the first respondent not to proceed with the liquidation without giving the claims of workmen.

2. Service is not complete on all the respondents. However, since this Court has decided not to pass any order on merits, there is no need to serve notice on the unserved respondents. www.taxguru.in

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3. Heard the learned counsel for the petitioners and the learned counsel for the first respondent.

4. Ext.P7 is admittedly appealable under Section 61 of the Code. However, the learned counsel for the petitioners has submitted that the petitioners have presently no grievance with regard to Ext.P7 order passed by the Tribunal ordering liquidation of the company. The learned counsel for the petitioners has further submitted that the decision taken by the

Liquidator regarding the claims of the petitioners is not correct and hence a direction is to be issued to the Liquidator to take a decision afresh after hearing the www.taxguru.in

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5. Admittedly, the Liquidator had taken a decision. The decision taken by the liquidator is appealable under Section 42 of the Code. The petitioners, in order to file appeal under Section 42 of the Code, filed an application to condone the delay in filing the appeal. It has been submitted that the said delay condonation petition had been already allowed by the Tribunal. Now, the petitioners have to file appeal as provided under Section 42 of the Code.

6. Since there is provision for appeal and the petitioners had already decided to resort to the said provision by www.taxguru.in

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-11- filing application for condoning the delay in filing the appeal, it is not just and proper for this Court to pass any order exercising the supervisory jurisdiction under Article 227 of the Constitution of

India, particularly when so many appeals in this connection are pending consideration by the Tribunal. Since so many appeals are pending before the Tribunal relating to the issue involved in this case, the Tribunal is directed to dispose of all the appeals, including the appeals to be filed by the petitioners in this case, in accordance with law, as expeditiously as possible, affording reasonable opportunity of hearing to all the affected parties. Till the appeals are www.taxguru.in

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-12- disposed of, no amount shall be disbursed to the creditors. However, this judgment will not stand in the way of the Liquidator in effecting the sale of the property in accordance with law.

This O.P.(C) stands disposed of as above.

Sd/-

B. SUDHEENDRA KUMAR, JUDGE

STK www.taxguru.in

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APPENDIX

PETITIONER'S/S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE NOTICE ISSUED BY THE THIRD RESPONDENT COMPANY DATED 9.12.2012.

EXHIBIT P2 THE TRUE COPY OF THE REPLY LETTER NO.G2/5409/19 ISSUED BY PUBLIC INFORMATION OFFICER, DEPUTY LABOUR OFFICER, ALAPPUZHA.

EXHIBIT P3 THE TRUE COPY OF THE JOINT MEMO FILED BEFORE LABOUR COURT, ERNAKULAM IN ID NO.15 OF 2013 AND AWARD ISSUED BY THE LABOUR COURT, ERNAKULAM IN ID NO.15 OF 2013.

EXHIBIT P4 THE TRUE COPY OF THE SAMPLE DEFECT NOTICE AND STATUS OF CLAIM OF WORKMAN ISSUED BY THE FIRST RESPONDENT.

EXHIBIT P5 THE TRUE COPY OF SOME SAMPLE DOCUMENTS RESUBMITTED BY SOME OF THE PETITIONERS.

EXHIBIT P6 THE TRUE COPY OF SAMPLE EMAIL DEFECT NOTICE AGAIN SENT BY FIRST RESPONDENT.

EXHIBIT P7 THE TRUE COPY OF THE LIQUIDATION ORDER IN M.A.NO.7/KOB/2019 IN IBA 258/CHENNAI BENCH DATED 21.10.2019 ISSUED BY SECOND RESPONDENT, NCLT, KOCHI BENCH.

EXHIBIT P8 THE TRUE COPY OF LETTER SENT BY THE FIRST RESPONDENT SHOWING THE LIST OF CREDITORS OF EXCEL GLASSES LIMITED DATED 23RD JULY 2019. www.taxguru.in

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EXHIBIT P9 THE TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT DATED 3RD DECEMBER 2019 IN CIVIL APPEAL NO. 9171 OF 2019 @ SPECIAL LEAVE PETITION (C) NO.22684 OF 2019 AND CIVIL APPEAL NO.9172 OF 2019 @ SPECIAL LEAVE PETITION (C) NO.22724 OF 2019.