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2021 (10) TMI 940 - AT - Insolvency and BankruptcySeeking Liquidation of FDR accounts - Section 10 of the IBC - HELD THAT - The Appellant have taken objections, no special resolution in terms of Section 10(3)(c) of the Code have been filed by the Respondent No. 1 Corporate Debtor which is evident at page 1097, Vol.- VI of the Appeal Paper Book. It is also an admitted fact that from the Status Report filed on behalf of the Respondent No. 2 it is crystal clear that the Appellant RNY Healthcare Services Pvt. Ltd. have filed an Execution Petition against M/s Bourn Hall International India Pvt. Ltd. Corporate Debtor before the District Judge, Gurgaon in view of Arbitration Award passed by Ld. Arbitrator Mr. R.S. Baswana, District Session Judge (Retd.) on 06.02.2019 in Arbitration No. 87/2018 against M/s Bourn Hall International India Private Limited Others and next date in the matter on 19.08.2021. The Appellant have not come with clean hand before this Tribunal and despite directions passed by Ld. Adjudicating Authority the Appellant has not filed claim before the IRP - there is no illegality in the impugned order - Appeal dismissed.
Issues Involved:
1. Validity of the application filed under Section 10 of the Insolvency and Bankruptcy Code, 2016 (IBC). 2. Compliance with mandatory requirements under Section 10(3)(c) of the IBC. 3. Adequacy of the Extraordinary General Meeting (EOGM) and its documentation. 4. Non-cooperation by the Corporate Debtor's directors and the status of assets and records. 5. Execution of the Arbitral Award and the pending litigation under Section 34 of the Arbitration Act. Issue-wise Detailed Analysis: 1. Validity of the application filed under Section 10 of the Insolvency and Bankruptcy Code, 2016 (IBC): The Appellant, a creditor holding an Arbitral Award against the Corporate Debtor, challenged the application filed by the Corporate Debtor under Section 10 of the IBC, which was admitted by the National Company Law Tribunal (NCLT), Chandigarh Bench. The Appellant argued that the application was filed mischievously to defeat the lawful claims of various creditors, including the Appellant. 2. Compliance with mandatory requirements under Section 10(3)(c) of the IBC: The Appellant contended that the mandatory requirement of passing a special resolution for filing the petition under Section 10 was not met, as no Extraordinary General Meeting (EOGM) took place. The Appellant claimed that the documents furnished before the Adjudicating Authority were false. The Appellant relied on a previous judgment (M/s Neesa Infrastructure Limited V/s State Bank of India) to support this claim. 3. Adequacy of the Extraordinary General Meeting (EOGM) and its documentation: The Appellant argued that no EOGM took place on the claimed date, as the premises were in the possession of the Appellant. The Adjudicating Authority noted that no EOGM attendance sheet was produced by the Respondent, and the Appellant failed to provide proof that no shareholders' meeting occurred on the specified date. 4. Non-cooperation by the Corporate Debtor's directors and the status of assets and records: The Interim Resolution Professional (IRP) reported non-cooperation from the Corporate Debtor's directors, who did not provide complete information or hand over control and custody of the assets. The IRP identified the locations of the Corporate Debtor's assets and records, which were under the control of M/s RNY Healthcare Services Private Limited due to an arbitration award. The IRP faced difficulties in complying with various IBC regulations due to the lack of cooperation and access to necessary documents. 5. Execution of the Arbitral Award and the pending litigation under Section 34 of the Arbitration Act: The Appellant had filed an execution petition against the Corporate Debtor based on the Arbitral Award, which was pending before the District Judge, Gurgaon. Additionally, the Corporate Debtor had challenged the Arbitral Award under Section 34 of the Arbitration Act, and this petition was also pending. Findings: The Tribunal found that the Appellant had not come with clean hands and had failed to file a claim before the IRP despite directions from the Adjudicating Authority. The Tribunal concluded that there was no illegality in the impugned order and affirmed the judgment dated 29.05.2020 by the NCLT, Chandigarh Bench, which admitted the application under Section 10 of the IBC and rejected the Appellant's application. Order: The Tribunal dismissed the appeal, affirming the judgment of the NCLT, Chandigarh Bench, and found no merit in the Appellant's claims. The Registry was directed to upload the judgment on the Appellate Tribunal's website and send a copy to the NCLT, Chandigarh Bench.
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