Alchemist Asset Reconstruction ... vs Sanjeev Saxena & Ors

NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

Company Appeal (AT) (Insolvency)No. 914 of 2019 IN THE MATTER OF: Arunava Sikdar .....Appellant Vs. Sanjeev Saxena & Ors. ......Respondents

Present : For Appellant: Mr. Ashu Kansal, Mr. Milan Singh Negi, Mr. Karan Kohli, Advocates

With

Company Appeal (AT) (Insolvency)No. 915 of 2019

IN THE MATTER OF: Alchemist Asset Reconstruction Company Ltd. (AARC) .....Appellant Vs. Sanjeev Saxena & Ors. ......Respondents

Present : For Appellant: Ms. Varsha Banerjee, Mr. Kunal , Ms. Stuti, Advocates

05.09.2019 - Company Appeal (AT) (Insolvency)No. 914 of 2019

Company Appeal (AT) (Insolvency)No. 914 of 2019 The Appellant filed a petition before the Adjudicating Authority ('National

Company Law Tribunal'), Jaipur Bench, seeking direction against Respondent

- 'State of Rajasthan' to hand over the possession, assets, records, management

and affairs of the 'Corporate Debtor' which was with the State of Rajasthan.

2. The Adjudicating Authority by impugned order dated 7th August, 2019

noticed the stand taken by the State of Rajasthan and it was brought to the

notice of the Adjudicating Authority that the Hon'ble High Court of Rajasthan

has passed order in Civil Writ Petition No. 19134/2017 on 14th November, 2017

and the 'State of Rajasthan' has been restrained from transferring the property

of the 'Corporate Debtor' in question of the 'Corporate Debtor'.

3. Learned Additional Advocate General who appeared on behalf of the

Rajasthan informed Adjudicating Authority that the said order of the Hon'ble

High Court is still pending and in view of the same, the possession of the Assets

cannot be handed over to the 'Resolution Professional'. However, on behalf of

the 'State of Rajasthan' it was agreed to cooperate with the 'Resolution

Professional' (the Appellant herein) who has been allowed to visit the premises of

the 'Corporate Debtor' and to take appropriate steps for the purpose of preparing

the list of the assets, liabilities etc. in terms of provisions of the 'I&B' Code.

4. Impugned order recorded the aforesaid stand taken on behalf of the 'State

of Rajasthan' that the State Government was making all endeavour efforts to

settle the matter and that it will be desirable that the amicable settlement be

made out for preparing of the 'Resolution Plan' in consultation.

Company Appeal (AT) (Insolvency)No. 914 of 2019 2

5. Learned counsel appearing on behalf of the Appellant ('Resolution

Professional') submits that the assets of the 'Corporate Debtor' including the

premises being with the State Government, the 'State of Rajasthan' - the

'Resolution Professional' is not in a position to keep the 'Corporate Debtor' as a

going concern. Further, according to him, in terms of Section 18, the 'Interim

Resolution Professional' is bound to take custody of the assets and said provision

will override all other provisions of existing section and in view of Section 238 of

the 'I&B' Code.

6. It is stated that the order passed in Writ Petition fell for consideration

before the Hon'ble Supreme Court in Civil Appeal No. 12023/2018 wherein the

order of the Hon'ble High Court of Judicature dated 1st June, 2018 refusing to

transfer the winding up proceedings and the order setting aside order of NCLT

dated 13th April, 2018 both were set aside. The Hon'ble Supreme Court while

vacated the earlier interim order of stay of Insolvency proceedings made following

observations on 12th December, 2018 in Civil Appeal No. 12023 of 2018 in

Jaipur Metals & Electricals Vs. Jaipur Metals & Electricals Ltd. as quoted

below: -

"On this score, therefore, the High Court

Judgement has to be set aside. The NCLT

proceedings will not continue from the stage at

which they have been left off. Obviously, the

company petition pending before the High Court

Company Appeal (AT) (Insolvency)No. 914 of 2019 3 cannot be proceeded with further in view of Section

238 of the Code. The writ petitions that are pending

before the High Court have also to be disposed of in

light of the fact that proceedings under the Code

must run their entire course. We, therefore, allow

the appeal and set aside the High Court's

judgement."

7. In view of the aforesaid fact, we are of the view that the 'Resolution

Professional' must move an application before the Hon'ble High Court of

Judicature at Rajasthan and bring the matter to the notice of Hon'ble Chief

Justice with the request to expedite the matter as under the provisions of the

'I&B' Code, the matter is to be completed within 330 days after admission of the

application, and the matter is pending since 13th April, 2018.

8. It is expected that Hon'ble Chief Justice of Hon'ble High Court of

Judicature of Rajasthan will place the matter before the Appropriate Bench for

orders in terms of observations and directions made by the Hon'ble Supreme

Court as referred above.

9. Though the 'State of Rajasthan' has not been heard at this stage, we make

it clear that the proceedings under the provisions of the 'I&B' Code is binding on

all the Stakeholders / Central Government / State Government and the Local

Authorities and the State Government cannot change the Board of Directors as

it stands suspended in terms of Section 17 of the 'I&B' Code.

Company Appeal (AT) (Insolvency)No. 914 of 2019 4 The appeal stands disposed of with the aforesaid observation.

Company Appeal (AT) (Insolvency)No. 915 of 2019

This appeal has been preferred by the 'Financial Creditor' against the same

very impugned order passed by the Adjudicating Authority ('National Company

Law Tribunal') Jaipur Bench. The case of the Appellant being covered in the

connected appeal.

This appeal stands disposed of with the aforesaid observation.

[Justice S. J. Mukhopadhaya] Chairperson

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

[Kanthi Narahari] Member (Technical)

ss/gc

Company Appeal (AT) (Insolvency)No. 914 of 2019 5