Aquarius Financial Consultants Llp & ... vs Ms. Prajakta Menezes And Ors
- CitationCompany Appeal (AT) (Ins) No. 639 of 2025
Ratio decidendi
The rule this decision rests on
Where the assets sought to be taken into possession belong to the corporate debtor, the resolution professional is entitled to take possession of them, and an order permitting that possession discloses no error warranting interference in appeal, notwithstanding the financial creditor's asserted mortgage or security interest. Observations in an order that touch a party who was not heard cannot be treated as adverse findings against that party.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE MATTER OF: Aquarius Financial Consultants LLP & Ors. ...Appellants Versus Prajakta Menezes & Ors. ...Respondents
Present: For Appellant : Mr. Sandeep Bajaj and Mr. Mayank Biyani, Advocates. For Respondents : Mr. A.R. Shaikh and Mr. Chirag M. Bhatia, Advocates for R2.
Mr. J. Rajesh, Mr. Dhrupad Vaghani, Md. Arsalan Ahmed and Mr. Yashwardhan Ahmed, Advocates for R1.
ORDER
(Hybrid Mode)
24.04.2025: Heard Ld. counsel for the Appellant as well as Ld. counsel
appearing for the Respondent.
2. This appeal has been filed against the order dated 08.04.2025 passed by
National Company Law Tribunal, Mumbai Bench, Court-IV in IA No. 4121/
2024 which IA, filed by the Resolution Professional for taking possession of the
assets have been allowed. This appeal has been filed by the Financial Creditor
who claim to have 38.07% vote share in the Committee of Creditors.
Submission of the appellant is that appellant were not heard before passing the
order and observations have been made in paragraph 3 that the 'possession is
being obstructed by the third parties at the behest of the corporate debtors'.
The counsel for the appellant submits that no adverse observations could have
been made against the appellant without hearing the appellant. Appellant further submits that they have mortgage rights on the assets and now
resolution have been passed for liquidation and they have right to not
relinquish their security. Counsel for the RP submits that the liquidation order
has not yet been passed the appellant can very well exercise their rights under
Section 52 of the IBC in the liquidation proceedings.
3. We have heard the counsel for the parties and perused the records. We
are of the view that the appellant having not been heard the observations made
in paragraph-3 as quoted above be not treated to be adverse observation
against the appellant. Admittedly, the assets belong to the corporate debtor
hence the RP was entitled to take the possession. We thus, do not find any
error in the order, permitting the RP to take possession of the assets. It goes
without saying that the financial creditors shall have right in the liquidation
proceedings as per the IBC.
Subject to above, appeal is dismissed.
[Justice Ashok Bhushan] Chairperson
[Barun Mitra] Member (Technical)
[Arun Baroka] Member (Technical) harleen/NN
2 of 2 Company Appeal (AT) (Ins) No. 639 of 2025
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