Aashray Social Welfare Society & Ors vs Saha Infratech Pvt Ltd

IN THE MATTER OF: 1. Aashray Social Welfare Society Through its President Mr. Onkar Gupta Having its office at Plot No. 12, Tower P-2 ATS Green Village, Sector 93A, Noida - 201304 ...Appellant No 1 2. Onkar Gupta P1/81, ATS Green Village, Plot No. 1, Sector 93A, Noida - 201304 ...Appellant No. 2 3. Kul Bhushan Sharma P2/12, ATS Green Village, Plot No. 1, Sector 93A, Noida - 201304 ...Appellant No. 3

Versus Saha Infratech Pvt. Ltd. Through Interim Resolution Professional, Mr. Arun Jain, Villa No. 34, Block 4, 2nd Floor, Eros Garden, Charmwood Village, Faridabad, Haryana, 121009 ...Respondent.

Present: For Appellant: Mr. Abhijeet Sinha and Mr. Raghvendra Bajaj, Advocates. For Respondent: None. ORDER

(Virtual Mode)

08.03.2021 Heard Learned Counsel for the Appellant. This Appeal has

been filed as the Learned Counsel for the Appellant submits that on 28th

February, 2020 the Adjudicating Authority (National Company Law Tribunal, 2

New Delhi) had admitted the CP (IB) No. 1781(ND)2018 which was filed under

Section 7 of Insolvency and Bankruptcy Code, 2016 (IBC in short) and CIRP was

initiated of the Corporate Debtor-Saha Infratech Pvt. Ltd. Said Order is Annexure

A-2 - Page 33. The Learned Counsel submits that one Mr. Arun Jain was

appointed as Interim Resolution Professional (IRP in short). After the Order was

passed, when the Appellant noticed that no notice has been issued in terms of

Section 15 of IBC, the Appellant managed to contact the IRP who was appointed

and learnt from the IRP appointed namely Mr. Arun Jain that he was unable to

accept the Appointment as IRP of the Corporate Debtor. The Learned Counsel

submits that the Appellant thereafter filed I.A. No. 3371 of 2020 on 01st August,

2020 and sought appointment of IRP in place of Mr. Arun Jain as IRP. The

Learned Counsel submits that thereafter on various dates the matter had come

up before the Adjudicating Authority but the Adjudicating Authority had not

passed any orders.

2. It is also stated that another set of home-buyers also filed I.A. No. 3912 of

2020 for appointing IRP in place of Mr. Arun Jain but even that I.A. has been

kept pending by the Adjudicating Authority. It is stated that in the meanwhile,

the promoter is still in charge of the Corporate Debtor and according to the

Learned Counsel, the promoter is taking benefit of the pendency of the matter

before Adjudicating Authority and the present situation where no IRP has come

on record to take charge.

Company Appeal (AT) (Ins )No. 166 of 2021 3

3. The Learned Counsel submits that the Adjudicating Authority has heard

the IRP and IRP stated that he does not want to function as IRP of the Corporate

Debtor but instead of appointing another IRP the Adjudicating Authority has

gone into the questions as to why the said IRP is not accepting the Appointment

and asking said IRP why contempt be not initiated against him.

4. The Learned Counsel for the Appellant submits that when CIRP was

admitted vide Annexure A-2 on the motion by Financial Creditors Indu Kumar

and Ors., there were seven applications pending by Financial Creditors who are

home-buyers including Applications of Appellant Nos. 2 and 3 but as the

Application of Indu Kumar and Ors. was admitted, the Appellants are in difficulty

as the Applicants of IB/1781/ND/2018 are not filing Application and the

Adjudicating Authority did not pass any orders on the applications of other

home-buyers who are moving the Adjudicating Authority to substitute the IRP.

5. We have seen the Impugned Order Annexure A-1. We have considered the

facts submitted by the Learned Counsel for the Appellant. The Respondent in

the present Appeal is the Corporate Debtor. In the set of facts which we have, it

is not necessary for us to call the Corporate Debtor and hear the Corporate

Debtor on the issue. As such it appears to us to be in the ends of Justice that

we should pass orders in this Appeal giving necessary directions to the Ld.

Adjudicating Authority.

6. We dispose the Appeal with directions to the Ld. Adjudicating Authority to

urgently pass whatever orders the Adjudicating Authority wants to pass with

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regard to appointment of IRP in place of Mr. Arun Jain who it is stated has

conveyed unwillingness to take up the assignment. If the Adjudicating Authority

wants to take action of Contempt regarding the conduct of IRP Mr. Arun Jain it

would be open for the Adjudicating Authority to proceed with the steps regarding

Contempt but CIRP initiated on 28.02.2020 cannot be kept in abeyance. The

Adjudicating Authority can consider referring matter of the IRP Mr. Arun Jain to

IBBI also if it wants, but should immediately pass Orders to substitute.

7. We request the Adjudicating Authority to urgently appoint another IRP (in

place of earlier IRP Mr. Arun Jain who has not taken charge it appears) within

10 days, if required by taking name from the IBBI, on urgent basis. The Appeal

is disposed accordingly.

[Justice A.I.S. Cheema] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

Basant B./md

Company Appeal (AT) (Ins )No. 166 of 2021