Ajit Kumar Gupta vs Resolution Professional For Mount ...

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NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH: NEW DELHI Company Appeal (AT) (Ins) No. 781 of 2021 IN THE MATTER OF: SUSHILA H. MEHTA Flat No. 203, Sambhavnath Apartment Opp. Steel Chember, Wardhman Nagar, Nagpur 3400088, Maharashtra E-Mail: nareshmehta453@gamil.com ... Appellant

Vs. RESOLUTION PROFESSIONAL OF MOUNT SHIVALIK INDUSTRIES LTD. MS. PRATIBHA KHANDELWAL F2/14, LIC Flats, Sector -2, Vidyadhar Nagar, Jaipur - 302039 (Rajasthan) E-Mail: cspratibhak@gmail.com ...Respondent

Present For Appellant: Mr. Abhijeet Sinha and Mr. NPS Chawla, Advocates. For Respondents: Mr. Abhishek Anand, Advocate.

With Company Appeal (AT) (Ins) No. 782 of 2021 IN THE MATTER OF: M/S THE SAKCHI STORES Through partner Shri Naresh Mehta 22, Kalimati Road, Sakchi, Jamshedpur - 83100l E-mail: nareshmehta453@gmail.com .... Appellant

Vs. RESOLUTION PROFESSIONAL OF MOUNT SHIVALIK INDUSTRIES LTD. MS. PRATIBHA KHANDELWAL F2/14, LIC Flats, Sector -2, Vidyadhar Nagar, Jaipur - 302039 (Rajasthan) E-Mail: cspratibhak@gmail.com ...Respondent

CA (AT) (Ins) No. 781, 782, 668 & 669 of 2021. 2

Present For Appellant: Mr. Abhijeet Sinha and Mr. NPS Chawla, Advocates For Respondents: Mr. Abhishek Anand, Advocate

With Company Appeal (AT) (Ins) No. 668 of 2021 IN THE MATTER OF: BISHWANATH SHAW & COMPANY Having registered office at Subhash Marg, Hazaribagh Jharkhand - 825301 Email Id: ashawbagh@gmail.com .... Appellant

Vs. RESOLUTION PROFESSIONAL FOR MOUNT SIVALIK INDUSTRIES LTD. MS. PRATIBHA KHANDELWAL Reg. No. IBBI/IPA-002/IP-N00031/2016-2017/10068 F2/14, LIC Flats, Sector -2, Vidyadhar Nagar, Jaipur - 302039 (Rajasthan) E-Mail: cspratibhak@gmail.com ...Respondent

Present For Appellant: Mr. Abhijeet Sinha, Mr. Shubhankar Agarwala and Mr. Aditya Shukla, Advocates. For Respondent: Mr. Abhishek Anand, Advocate.

With Company Appeal (AT) (Ins) No. 669 of 2021 In the matter of: AJIT KUMAR GUPTA 210/B, SK Puri, Sahdeo Mahto Marg, Patna, Bihar - 800001 Email Id: ajit.gupta241@gmail.com .... Appellant

Vs. RESOLUTION PROFESSIONAL FOR MOUNT SIVALIK INDUSTRIES LTD. MS. PRATIBHA KHANDELWAL

CA (AT) (Ins) No. 781, 782, 668 & 669 of 2021. 3

Reg. No. IBBI/IPA-002/IP-N00031/2016-2017/10068 F2/14, LIC Flats, Sector -2, Vidyadhar Nagar, Jaipur - 302039 (Rajasthan) Mob: 9928325945 E-Mail: cspratibhak@gmail.com ...Respondent

Present For Appellant: Mr. Abhijeet Sinha, Mr. Shubhankar Agarwala and Mr. Aditya Shukla, Advocates. For Respondent: Mr. Abhishek Anand, Advocate.

JUDGMENT

Jarat Kumar Jain: J.

These Appeals have filed under Section 61 of the Insolvency

and Bankruptcy Code, 2016 (IBC) against the common order dated

16.07.2021 passed by the Ld. Adjudicating Authority (National

Company Law Tribunal, Jaipur Bench) in I.A. No. 169/JPR/2019,

I.A. No. 202/JPR/2019, I.A. No. 205/JPR/2019 & I.A. No.

212/JPR/2019 in CP (IB) No. 86/ND/2017 TA No. 83 (ND)/2018.

Whereby held that the Applicants (Appellants herein) are not the

Financial Creditor but the Operational Creditor of the Corporate

Debtor.

2. Brief facts of these Appeals are that the Corporate Debtor i.e.

Mount Shivalik Industries Ltd. is under CIRP and Ms. Pratibha

Khandelwal appointed as RP by the Adjudicating Authority. Sach

Marketing Pvt. Ltd. and the other four Creditors who are the

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Appellant herein filed their claim as the Financial Creditor of the

Corporate Debtor. However, the RP has treated their claim as

Operational Debt. Hence, Sach Marketing Pvt. Ltd. and the

Appellants have filed Applications before the Adjudicating

Authority. Ld. Adjudicating Authority vide order dated 18.01.2021

decided the Application (I.A. No. 135/JPR/2019) of Sach

Marketing Pvt. Ltd. holding that the RP has rightly admitted the

claim as Operational Debt and thereby dismissed the Application.

Subsequently, Ld. Adjudicating Authority by the impugned order

dated 16.07.2021 on the same reasoning dismissed the

Applications filed by the Appellants. Particulars are as under:-

(i) I.A. No. 169 /JPR/2019 (M/s The Sakchi Stores Vs. RP for Mount Shivalik Industries Limited.) Appeal CA (AT) (Ins) No. 782 of 2021.

(ii) I.A. No. 202/JPR/2019 (Sushila H. Mehta Vs. RP for Mount Shivalik Industries Limited) Appeal CA (AT) (Ins) No. 781 of 2021.

(iii) I.A. No. 205/JPR/2019 (Bishwanath Shaw & Company Vs. The Interim Resolution Professional Ms. Pratibha Khandelwal for Mount Shivalik Industries Limited) Appeal CA (AT) (Ins) No. 668 of 2021.

(iv) I.A. No. 212/JPR/2019 (Ajit Kumar Gupta Vs. RP for Mount Shivalik Industries Limited Ms. Pratibha Khandelwal) Appeal CA (AT) (Ins) No. 669 of 2021.

CA (AT) (Ins) No. 781, 782, 668 & 669 of 2021.

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3. Being aggrieved with the impugned order, The Appellants

have filed these Appeals.

4. Sach Marketing Pvt. Ltd. has also filed the Appeal CA (AT)

(Ins) No. 180 of 2021 before this Appellate Tribunal against the

order dated 18.01.2021. The Coordinate Bench of this Appellate

Tribunal vide order dated 07.10.2021 allowed the Appeal and hold

that the said amount of debt is to be treated as a Financial Debt.

5. Ld. Counsels for the Appellants submit that the case of the

Appellants is squarely covered by the decision in CA (AT) (Ins) No.

180 of 2021. Therefore, the impugned order may be set aside and

the Appellant's debt may be treated as a Financial Debt.

6. Ld. Counsel appearing on behalf of the Respondent (RP)

submits that it is true that the Appellant's case is squarely covered

by the decision of CA (AT) (Ins) No. 180 of 2021.

7. After hearing Ld. Counsels for the parties. We have

considered the submissions. Admittedly, the Adjudicating

Authority vide order dated 18.01.2021 dismissed the Application

I.A. No. 135/JPR/2019 of Sach Marketing Pvt. Ltd. and hold that

the claim comes within the definition of Operational Debt and not

the Financial Debt. Being aggrieved with this order, Sach

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Marketing Pvt. Ltd. has filed the CA (AT) (Ins) No. 180 of 2021

before this Appellate Tribunal and this Appellate Tribunal after

elaborate discussion vide Judgment dated 07.10.2021 allowed the

Appeal and hold that the loan advanced by the Appellant 'Sach

Marketing Pvt. Ltd.' is a Financial Debt. It is useful to refer the

Paras 22, 23 & 24 of the Judgment passed by this Appellate

Tribunal, which are as under:-

22. The 'Corporate Debtor' had accepted the 'Security Deposit' from the Appellant and credited the interest for some time against such amounts for the period 2014-15, and bearing in mind the payment of interest on the amounts borrowed by the 'Corporate Debtor' is nothing but a consideration for the time value of money and the interest is being paid to the Appellant for using the money belonging to the Appellant over a period of time and hence we arrive at the conclusion that the status of Appellant is that of a Financial Creditor vis-à-vis the amount of 'Security Deposit' as per Section 5(7) read with Section 5(8) of the Code. We are of the considered view that the ratio of the Judgement of the Hon'ble Supreme Court in 'M/s. Orator Marketing Pvt. Ltd.' (Supra) is squarely applicable to the facts of this case and we hold that the 'debt' in question is a 'Financial Debt'.

23. Now we address ourselves to the fact that the Resolution Plan has already been accepted by the CoC and is pending before the NCLT for approval. The material on record shows that the Appellant herein had filed an Interim Application on 02.05.2019, challenging the rejection, but while the I.A. preferred by the Appellant was kept pending, the RP filed I.A. 186/JPR/2019 seeking approval of the Resolution Plan was filed and the Adjudicating Authority dismissed the I.A. preferred by the Appellant only on 18.01.2021. The Appellant Counsel has submitted that they are not pressing for reconstitution of the CoC at this stage and do not intend to challenge or oppose the Resolution Plan, but only to seek for the debt amount to be treated as a 'Financial Debt'.

24. For all the aforenoted reasons, this Appeal is allowed and the Impugned Order is set aside. We hold that the said amount of debt

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8. The case of the Appellants is squarely covered by the decision of CA (AT)

(Ins) No. 180 of 2021. Therefore, we allowed these Appeals and hold that the

debt owed to the Appellants, is a Financial Debt as defined under Section 5

(8) of the IBC.

Thus, the impugned order is hereby set aside and the Appeals are

allowed. However, no order as to costs.

[Justice Jarat Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical)

New Delhi 29th October, 2021.

SC

CA (AT) (Ins) No. 781, 782, 668 & 669 of 2021.