Abhijit Guhathakurta (Liquidator) vs Agc Networks Limited

IN THE MATTER OF: Abhijit Guhathakurta ...Appellant

Versus

AGC Networks Ltd. ...Respondent

Present: For Appellant: Mr. Nalin Kohli, Mr. Abhishek Swaroop, Mr. Aditya V. Singh, Ms. Nimisha Menon, Ms. Megha Rana, Advocates For Respondent: Mr. Dhruv Dewan, Mr. Tabrez Malawat, Mr. Syed Hamza, Mr. Sourajit Sarkar, Advocates

ORDER

Per: Justice Rakesh Kumar Jain: (Oral)

02.02.2023: This appeal is directed against the order dated 08.06.2021,

passed by the Adjudicating Authority (National Company Law Tribunal,

Mumbai Bench, Court-II) on an application bearing I.A. No. 1013 of 2020 filed

in CP (IB) 1832/MAH/2017, at the instance of the Liquidator under Section

60(5) of the Insolvency and Bankruptcy Code, 2016 (In short 'Code') for

seeking directions to the Respondent to continue to provide IT Services and

Infrastructure to the Corporate Debtor. The reliefs sought in the said

application are as under: -

"a. That this Hon'ble Tribunal be pleased to order and direct that the Respondent continue to provide IT Infrastructure and render IT services to the CD on the same terms as existing on 01.05.2020 till such time as the approved Resolution Plan is fully implemented by the Resolution Applicant and the Resolution Applicant takes control of the CD;

2 b. Without prejudice to the foregoing that this Hon'ble Tribunal be pleased to order and direct that the Respondent continue to provide IT Infrastructure and render IT services to the CD on the same terms as existing on 01.05.2020 for a period of six months from the date of lifting of the nationwide lockdown, and more specifically the lockdown in Mumbai, so as to enable the Applicant to identify and appoint a suitable replacement entity / vendor to provide IT Infrastructure and IT services to the CD, and to ensure adequate time for migration from the infrastructure of the Respondent to the newly appointed entity/vendor;

c. Pending hearing and final disposal of this Application, that this Hon'ble Tribunal be pleased to direct continued provision of IT Infrastructure and IT services to the CD by the Respondent on the same terms as existing on 01.05.2020;

d. Pending hearing and final disposal of this Application, that this Hon'ble Tribunal be pleased to restrain the Respondent from ceasing to provide IT Infrastructure and IT services to the CD as set out in the email communications of the Respondent dated 01.05.2020, 02.06.2020 or 07.06.2020 respectively;

e. That this Hon'ble Tribunal may be pleased to grant interim and ad-interim reliefs in terms of prayers (a) to (d); f. That the Hon'ble Tribunal be pleased to pass any other order in the interest of justice in favour of the Applicant herein"

2. The aforesaid application was disposed of with the following

observations: -

"16. The issue was heard on various occasions and the bench passed an order on 14.07.2020, directed the CD (The Applicant herein) to pay 60% of the charges claimed by the Respondent herein @25,00,000/- per mensem during CIRP period till disposal of the present application

17. Subsequently, the Hon'ble NCLAT passed an order dated 21.09.2020 in I.A. No. 660 of 2020. Having considered the entire 3

facts and the relationship of the CD and the Applicant being the part of Essar Group and the IT Services are intertwined with the operation of the CD which is vital for the CD as well in the interest of justice and to ensure that the CD is not put into any difficulty in view of the current lockdown situation and as prayed by the Applicant, 6 months' time is granted and the Respondent is directed to ensure seamless services to the CD for a period of 6 months from the date of lifting lockdown in the state of Maharashtra especially Mumbai. Further the bench also directs the CD to pay the balance outstanding dues within a period of 3 months from the date of receipt of the order and continue to pay monthly charges towards the services charge as claimed by the Respondent.

18. In view of the above I.A No. 1013 of 2020 in CP No. 1832 of 2017 is allowed and disposed off."

3. Aggrieved against the said order, the present appeal has been filed in

which an order was passed by this Tribunal on 28.09.2021, which reads

thus:-

"28.09.2021: Heard both sides.

2. It comes to the notice that IA No. 1013/MB/C-II/2020 in C.P(IB) No. 1832/MB/C-II/2017 was filed by the Appellant/ Monitoring Agency of the Corporate Debtor before the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, Court-II and the Adjudicating Authority on 08.06.2021 at para 17 had observed the following and disposed off the IA No. 1013/MB/C-II/2020 in C.P(IB) No. 1832/MB/C-II/2017:-

"17. Subsequently the Hon'ble the NCLAT passed an Order dated 21.09.2020 in IA 660/2020. Having considered the entire facts and relationship of the Corporate Debtor and the Applicant being the part of Essar Group and the IT services are intertwined with the operation of the Corporate Debtor which is vital for the Corporate Debtor as well in the interest of Justice and to ensure that the Corporate Debtor is not put into any difficulty in view of the current lockdown situation andas prayed by the Applicant, 6 months' time is granted and the Respondent is directed to ensure seamless services 4

to the Corporate Debtor for a period of 6 months from the date of lifting lockdown in the state of Maharashtra especially Mumbai. Further the bench also directs the Corporate Debtor to pay the balance outstanding dues within a period of 3 months from the date of receipt of copy of the Order and continue to pay monthly charges towards the service charge as claimed by the Respondent."

3. Assailing proprietary, validity, correctness and legality of the impugned order dated 08.06.2021 passed by the Adjudicating Authority (National Company Law Tribunal), Mumbai Bench, Court- II, the Liquidator of the Corporate Debtor has preferred the instant Appeal as Appellant by taking a plea that the impugned order passed by the Adjudicating Authority is unsustainable in the eye of law and furthermore in the Application projected by Appellant/ Monitoring Agency, such an order directing the balance outstanding dues to be paid within three months from the date of receipt of the copy of the order etc. cannot be passed in the eye of law. Added further, the Appellant as an aggrieved person has raised many factual and legal issues in the Memo of Appeal.

4. At this stage, the Learned Counsel for the Respondent pushed forward an argument by sustaining the impugned order by pointing out that as on date, from April, 2018 till June, 2021, the principal amount itself outstanding is of Rupees Nine Crore and as such there is no infirmity in the impugned order passed by the 'Adjudicating Authority'.

5. Considering the rival submissions, at the stage of admission, this Tribunal is of the prime view that the Appellant, in the interest of justice, is directed to pay Rs. 4.50 Crores to the Respondent/ 'AGC Networks Ltd.' in respect of arrear amount of Rupees Nine Crores for the period from April, 2018 till June, 2021 within two months from today (less amount of Rs.1 Crore paid already) and this payment to be made to the Respondent by the Appellant is without prejudice to the rights and contentions of the Appellant as well as the Respondent to be agitated/ raised by them in the main pending instant Company Appeal (AT) (Insolvency) No. 683 of 2021.

6. It is made lucidly clear that the Appellant shall continue to pay the current monthly charges in respect of the service charge as claimed by the Respondent .

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7. Liberty is granted to the respective sides to raise all factual and legal issues before this Tribunal at the time of hearing of the main instant Company Appeal (AT) (Insolvency) No. 683 of 2021.

8. It is open to the Respondent to file 'Reply'/ 'Response'/ 'Counter' to the main Appeal within two weeks from today before the 'Office of the Registry' (not only through e-filing but also through Hardcopy). The copy of the same shall be exchanged between them, well in advance.

9. After the receipt of the copy of 'Reply'/ 'Response'/ Counter' of the Respondent, it is open to the Learned Counsel for the Appellant to file 'Rejoinder', if any, within one week thereafter before the 'Office of the Registry' (not only through e-filing but also through Hardcopy) and the copy of the same shall be exchanged between them, well in advance.

10. The 'Office of the Registry' is directed to List the matter on 01.12.2021.

In the interregnum, it is open to the Learned Counsel for the respective parties to furnish 'Notes of Submissions', containing not more than three pages, together with 'Citations', if any, which they rely upon, before the 'Office of the Registry' (not only through e-filing but also through Hardcopy) and the copy of the same shall be exchanged between, well in advance."

4. The Appellant is basically aggrieved against the observations of the

Adjudicating Authority which are reproduced as under: -

"Further the bench also directs the CD to pay the balance outstanding dues within a period of 3 months from the date of receipt of copy of the order and continue to pay monthly charges towards the service charge as claimed by the Respondent."

5. After lengthy arguments, Counsel for the Appellant has submitted that

it is not clear from the aforesaid observations as to how much money is to be

paid (balance outstanding dues) and on what basis and from what point in

time.

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6. On the other hand, we have recorded in our order dated 28.09.2021

that "Counsel for the Respondent has pointed out that the outstanding

amount from April, 2018 till June, 2021 towards the principal amount itself

is Rs. 9 Crore." Considering the said fact, we had directed the Appellant to

pay Rs. 4.50 Crore to the Respondent and it was made clear that the Appellant

shall continue to pay the current monthly charges in respect of the service

charge as claimed by the Respondent.

7. Counsel for Respondent has fairly conceded before us that the

Respondent has already received Rs. 4.50 Crores and has been consistently

receiving Rs. 25 Lakh per month as directed.

8. Since, the issue raised before us is about the basis on which the

'balance outstanding dues' are being claimed and that too as to how much

amount has been accrued, it would be just and expedient if an Application is

filed by the Respondent before the Adjudicating Authority in I.A. No. 1013 of

2020 with a prayer to seek a declaration of the said two issues about as to

how the amount has become due and how much amount is recoverable so

that the dispute between the parties can be effectively resolved.

9. Therefore, in view of the aforesaid facts and circumstances, the present

appeal is hereby disposed of with liberty to the Respondent to file an

appropriate application, in accordance with law, for seeking the clarification

in respect of the observations which are under challenge before this court by

the Appellant.

10. It is made clear that we have not touched the merits of the case at all.

The parties to the lis may file additional documents to prove the aforesaid two

issues before the Adjudicating Authority. In case, any such application is filed 7

within a period of two weeks from today, the Adjudicating Authority shall

make all endeavours to decide the same as early as possible but preferably

within a period of two months.

11. It is needless to mention that the arrangements made by us in the order

dated 28.09.2021 that the Appellant shall continue to pay the current charges

in respect of the service charge as claimed by the Respondent shall continue

but shall be subject to adjustment in accordance with the final outcome of

the application.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Kanthi Narahari] Member (Technical)

[Dr. Alok Srivastava] Member (Technical)

Sheetal/RR