9911796707
TMI Blog2025 (3) TMI 972X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal shows the Tribunal only granted a stay on further steps to be taken by the IRP. Admittedly the applicant being the majority shareholders of the Corporate Debtor and in the wake of allegations it makes; including admission by the appellant that some portion of property of Corporate Debtor has been mortgaged after the CIRP is initiated; the applicant needs to be heard and it cannot be said it has no locus. Even otherwise we need not dwell upon this issue as even the appellant's application is also for clarification of order dated 07.12.2023. The main issue in it was qua exclusion of some period for counting of the time limits for completion of CIRP, hence would not be relevant for the issue involved herein. The learned senior counsel also referred to Rajendra Bhutia Vs Suri Rahul Erstwhile Director of the Corporate Debtor and Another [2021 (10) TMI 1458 - NATIONAL COMPANY LAW TRIBUNAL MUMBAI BENCH] wherein the facts were the RP did not take possession of the assets during a particular period and the Board of Directors of Corporate Debtor were incharge of its affairs and it was held there cannot be a vacuum in the management of company. However, in this case too the amount so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for the purposes of keeping Bhasin Infotech and Infrastructure Pvt Ltd as a going concern, in light of the order dated 07.12.2023 passed by this Tribunal; and/or b) Pass such other order(s) as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case. 3. Evidently both these applications are for seeking clarification of the order dated 7.12.2023 passed by this Tribunal. The relevant extract of the order dated 07.12.2023 is as under:- "5.In the facts of the present case, we are of the view in the ends of justice be served in directing the Appellant to implead UPSIDC as one of the Respondents to the appeal and notice be also issued to UPSIDC to elucidate its stand regarding tripartite lease deed as well as the completion of the commercial units which are sought to be handed over to the allottees by the Appellant. 6. After considering the submissions of the Counsel for the parties, we are of the view that the major issue between the parties is tripartite lease deed and due to reason that certain unit holders have not taken possession and have been contending that there is default on the part of the Appellant. In view of the materials wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an Interim Resolution Professional (IRP) for both the Corporate Debtor 1 and Corporate Debtor 2. The consent of the proposed interim resolution professional in Form-2 is taken on record. It is pertinent to mention that IRP has a valid AFA. 22. We also declare moratorium in terms of Section 14 of the Code....... 24. In pursuance of Section 13 (2) of the Code, we direct that public announcement shall be made by the Interim Resolution Professional immediately (within 3 days) as prescribed by Explanation to Regulation 6(1) of the IBBI Regulations, 2016) with regard to admission of this application under Section 7 of the Insolvency & Bankruptcy Code, 2016. 28. The Interim Resolution Professional shall be under duty to protect and preserve the value of the property of the 'Corporate Debtors' as a part of his obligation imposed by Section 20 of the Code and perform all his functions strictly in accordance with the provisions of the Code, Rules and Regulations....... 30. Accordingly, the instant application filed under Section 7 of the Code, 2016 bearing I.B./646 (PB)/2021 stands admitted. 6. This order dated 04.03.2025 is challenged before the Ld. NCLAT in this Company Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e financial institutions maintaining accounts of the corporate debtor shall act on the instructions of the interim resolution professional in relation to such accounts and furnish all information relating to the corporate debtor available with them to the interim resolution professional. (2) The interim resolution professional vested with the management of the corporate debtor shall- (a) act and execute in the name and on behalf of the corporate debtor all deeds, receipts, and other documents, if any; (b) take such actions, in the manner and subject to such restrictions, as may be specified by the Board; (c) have the authority to access the electronic records of corporate debtor from information utility having financial information of the corporate debtor; (d) have the authority to access the books of account, records and other relevant documents of corporate debtor available with government authorities, statutory auditors, accountants and such other persons as may be specified. 18. Duties of interim resolution professional. The interim resolution professional shall perform the following duties, namely:- (a) xxx (i) xxx (ii) xxx (iii) xxx (iv) xxx (b) xxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of information and management of the corporate debtor. 20. Management of operations of corporate debtor as going concern. (1) The interim resolution professional shall make every endeavour to protect and preserve the value of the property of the corporate debtor and manage the operations of the corporate debtor as a going concern. 8. Admittedly upon initiation of CIRP, the moratorium is to be declared which in fact was declared by the impugned order 04.12.2023. Admittedly vide such order, the IRP was appointed and admittedly per Section 17 of IBC, from the date of the appointment of the IRP, the management of the affairs of the Corporate Debtor stood vested with the IRP on 04.12.2023 itself. 9. A bare perusal of the order dated 07.12.2023 passed by this Tribunal shows the Tribunal only granted a stay on further steps to be taken by the IRP. Thus we cannot read the order dated 07.12.2023 as granting status quo ante or disturbing the fiction of law so created by the Sections above of the IBC, 2016. 10. In Mukesh Kumar Jain V Navin Kumar Upadhyay, 2023 SCC OnLine NCLAT 2359 where there was a stay of CIRP process of the Corporate Debtor, it was held the management of the affair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeding any further in the CIRP and await the order of the Appellate Court. The direction to the Resolution Professional in the impugned order to handover the Corporate Debtor to the ex-management is wholly unjustified and has to be set aside. 14. Much emphasis has been given by the Learned Counsel for the Respondent No.1 that one of the directions issued by the Adjudicating Authority's impugned order was to declare all actions taken by the Resolution Professional after the order dated 25.02.2022 as null and void. It is submitted that since the Respondent No.1 was not permitted to function w.e.f. 01.02.2023 by the Resolution Professional, the said order also has to go and Respondent No.1 should be allowed to function as Executive Editor. We have already noticed that a separate IA being IA No.4138-4139 of 2023 has been filed by the Respondent No.1 praying the relief of reinstatement of the Respondent No.1 as Executive Editor which prayer has already been refused by detailed order of this Tribunal dated 06.11.2023. We see no reason to issue any direction to permit Respondent No.1 to work as Executive Editor. We have already noticed that the Appeal filed by Mr. Navin Kumar Upadh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid provisions, it is apparent that with the passing of the order of admission, initiation of CIRP of the Corporate Debtor, appointment of IRP and declaration of moratorium, the powers of the board of directors of the Corporate Debtor are suspended and are vested with the IRP. Hence, the suspended board of directors of the Corporate Debtor looses their competence and jurisdiction to deal with the assets of the Corporate Debtor in any manner much less for the purpose of transferring its assets which is clearly prohibited under Section 17(1)(b) of the Code. 13. In the present case, the RP has not raised any issue with regard to incurring of expenses of Rs. 25, 32, 534/- by the Corporate Debtor for the purpose of running of the hospital but has raised the dispute about the transfer of Rs. 41, 70, 000/- by the Corporate Debtor to Rancan Impex Pvt. Ltd. which is otherwise allegedly a related party. The view taken by the Adjudicating Authority in this regard is totally erroneous that the CIRP was initiated on 27.05.2020 but control of the Corporate Debtor was taken by the IRP in the first week of July, 2020. In this regard, various communications have been mentioned and are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h High Tech Builders Pvt. Ltd. Civil Appeal No. 3325 of 2020 (2022) 3 SCC 161 to state that the IBC does not provide for equity jurisdiction. This however cannot come to the aid of the Appellant since the facts of the present case are clearly distinguishable. In view of the peculiar circumstances of the present case where the Section 8 Demand Notice could not be responded to by the Corporate Debtor company for reasons beyond their control and a collusive petition having been filed, Respondents No.2 and 3 being majority shareholders of the Corporate Debtor Company deserve to be heard. It is a well settled canon of natural justice that anything which eludes or frustrates the recipient of justice should be avoided and reasonable opportunity of hearing be allowed to advance the cause of justice. We are of the view that Respondents No.2 and 3 being majority shareholders holding 98.98% share of the Corporate Debtor company, they deserve a chance to safeguard the rights and interests of the Corporate Debtor and their respective stakeholders given that the Appellant and KKV had in collusion foisted an abnormal situation by their resignation from the Corporate Debtor company causing a void ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case too the amount so withdrawn by the erstwhile Directors was directed to be refunded alongwith fine to the IRP, hence also is not relevant. 17. Thus we are not in doubt that on 04.12.2023 viz. the day when the IRP was appointed, the control and management of the affairs of the Corporate Debtor stood vested in the hands of the IRP, per legal fiction so created by sections 13 to 20 (supra). The issue is answered accordingly. 18. Now we come to another issue raised before us. A writ petition No;.26964/2024 is filed by an erstwhile Director of the CD against the State of UP and three others for quashing of a demand raised by the UPSIDC and the same is now listed on 10th March, 2025 for final arguments. We find the said writ petition furthers the cause of allottees as is noted in paras No.5 and 6 of this tribunal's order dated 7.12.2023 (supra), hence we direct the RP to accord his presence in the said writ petition, as a co-petitioner, in the peculiar circumstances as are explained and would act in accordance with law. 19. We make it clear this order does not recall the earlier order dated 07.12.2023 but only narrates the position of law and its effect upon the Corporate ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
