9911796707
TMI Blog2019 (11) TMI 1015X X X X Extracts X X X X X X X X Extracts X X X X ..... the Insolvency and Bankruptcy Code, 2016 (hereinafter, "IBC"), appointed an Interim Resolution Professional (hereinafter, "IRP") and declared a moratorium in terms of Section 14 of the IBC. 2. The Petitioner is the ex-Director/Promoter of the company - M/s Vigneshwara Developers Private Ltd. (hereinafter, "VDPL"), in respect of which the IRP has been appointed. The grievance of the Petitioner is that there were a number of investors in VDPL, who had preferred petitions under Sections 529 (A) and 530 of the Companies Act, 1956 before this Court. 3. The aforesaid petitions were admitted by the Company Court on 22nd July, 2016 and the Official Liquidator of the Court was appointed as the Provisional Liquidator. During the pendency of these proceedings, the ex-directors of VDPL and Vigneshwara Developwell Pvt. Ltd. engaged in mediation proceedings with their creditors, with the express permission of the Company Court, to explore amicable resolution. The Company Court had referred a large number of investors to mediation. A settlement was arrived at under the aegis of the Delhi High Court Mediation Centre on 4th December 2017. 4. Vide order dated 12th October, 2018, the Company Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be entertained, as, if the Corporate Insolvency Resolution Process (hereinafter, "CIRP") is not permitted to go on, VDPL would continue to remain in the control of the management. The revival scheme is not acceptable to VVWA, which has also been recorded by the Company Court in its order dated 12th October, 2018. 10. Ld. counsel appearing for Mr. Lovkesh Verma i.e., the Financial Creditor who had approached the NCLT, reiterates the submission that the present petition is not maintainable in view of the express bar under Section 63 of the IBC. He further submits that his client had been called during mediation proceedings in the Delhi High Court, however, no settlement was arrived at between his client and VDPL. 11. Ld. counsel appearing for the IRP also reiterates that the present petition is not maintainable in view of the provisions of the IBC. 12. Mr. Abhinav Mishra, ld. counsel appearing for M/s Vigneshwara Barter Investment Association (hereinafter, "VBIA"), which was also represented before the Company Court, submits that the Company Court has spent enormous amount of time and effort in formulating the revival scheme. The entire scheme would be set at naught if the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The audited balance sheets as on 31.03.2013 have also been placed on record. 3. Learned counsel appearing for the applicant has pointed out that there are two projects of the respondent company i.e. Darson & Kisson I Valley Business Park at Plot No.CP02, Sector-8, Manesar, Gurugram which was to be allotted for development of a technology park. Similarly another project by the name of Aquarious Business Park has also been developed at Village Begumpur Khatola, Sector-74, Gurugram. 4. It has also been pleaded by the leamed counsel for the applicant that that the applicant has entered into a settlement before the Delhi High Court Mediation and Conciliation Centre with the Investors Sangharsh Samiti (Regd.) who has 523 members on 4th December, 2017. They have also entered into a settlement with the Vigneshwara Barter Investors Association (VBIA) which has 250 members and Vigneshwara Victims Welfare Association who had 300 members. In addition there are certain individual agreements that have also been entered into. It is pleaded that out of about 1437 unit buyers, 1180 have agreed to the settlement, i.e. 1180 unit buyers have signed the settlement agreements before the Delhi High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs concerned as contemplated by Section 391 sub-section (1). 5. That all the requisite material contemplated by the proviso of sub-section (2) of Section 391 of the Act is placed before the Court by the applicant concerned seeking sanction for such a scheme and the Court gets satisfied about the same. 6. That the proposed scheme of compromise and arrangement is not found to be violative of any provision of law and is not contrary to public policy. For ascertaining the real purpose underlying the scheme with a view to be satisfied on this aspect, the Court, if necessary, can pierce the veil of apparent corporate purpose underlying the scheme and can judiciously X-ray the same. 7. That the Company Court has also to satisfy itself that members or class of members or creditors or class of creditors, as the case may be, were acting bona fide and in good faith and were not coercing the minority in order to promote any interest adverse to that of the latter comprising the same class whom they purported to represent. 8. That the scheme as a whole is also found to be just, fair and reasonable from the point of view of prudent men of business taking a commercial decision beneficial t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the unit holders submits that any order passed by this court would be misused by the applicant for seeking bait. 16. Learned counsel appearing for the applicant has strongly rebutted this statement stating that majority of the unit buyers have voluntarily entered into an agreement before the Delhi High Court Mediation and Conciliation Centre and hence to claim that this application is motivated is entirely erroneous. 17. Learned counsel appearing for Manasvi Security Services has pointed out that on instructions of OL security has been deployed on the site and an outstanding bill amounts of Rs. 2.16 crores is pending. It is agreed that the representative of the management will meet the OL on 15.10.2018 at 3:00 PM. The OL will sort out the issue regarding claim of Manasvi Security Services. 18. List in the Court on 16.01.2019." 15. After the scheme was advertised extensively, both in newspapers and on the internet, further hearing was conducted by the Company Court on 13th May, 2019, and judgment has been reserved. 16. The question as to whether the scheme would be finally accepted by the Court and if so, what steps are to be taken, is yet to be pronounced by the Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Company Court. The Company Court being seized of the matter and judgment having been reserved by the Court, the same is awaited. The revival scheme has been formulated after deliberations for more than five years before the High Court. The entire effort and labour put into the revival of the company would be completely defeated if at this stage, an IRP is appointed and moratorium is declared. 19. Though, there is no doubt that the jurisdiction of this Court is not to be exercised under Article 227 if there is an alternate remedy available, in order to avoid conflicting orders from operating in respect of the company, to the detriment of the creditors and other stakeholders, this Court is of the opinion that, while relegating the Petitioner to the NCLAT, the impugned order of the NCLT deserves to be kept in abeyance. In view of the remedy of appeal being available to the Petitioner, to approach the NCLAT, the Petitioner is permitted to approach the NCLAT within four weeks. In view of the peculiar facts and circumstances of the present case, it is directed that the order dated 10th October, 2019, passed by the NCLT, shall remain stayed until the pronouncement of the judgment by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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