Arvind Garg vs Palika Towns Llp & Anr

IN THE MATTER OF: Arvind Garg Liquidator of Moser Baer Solar Ltd. ...Appellant Versus Palika Towns LLP & Anr. ...Respondents

Present: For Appellant : Mr. Kamal Mehta, Mr. Mansumyer Singh, Ms. Jaismeen Sharma and Mr. Arvind Garg, Advocates.

For Respondents : Mr. Krishnan Venugopal, Sr. Advocate with Mr. J. Rajesh, Mr. Anuj Panwar and Mr. Md. Arsalan Ahmed, Advocates for R-1.

Mr. Abhishek Anand, Mr. Karan Kohli, Ms. Palak Kalra and Ms. Komal H., Advocates for R-2.

ORDER

(Hybrid Mode)

04.07.2024 : Heard Counsel for the Appellant, Learned Sr. Counsel Mr.

Krishnan Venugopal appearing for Respondent No. 1 and Learned Counsel

Mr. Abhishek Anand appearing for Respondent No. 2.

2. This appeal has been filed against an order dated 12.06.2024 passed

by the Learned Adjudicating Authority (National Company Law Tribunal,

Principal Bench, New Delhi), passed in I.A. 5733/2023 and I.A. 1802/2024

in C.P. (IB) No. 378/(PB)/2017.

3. By the impugned order, Adjudicating Authority has disposed of the I.A.

No. 5733/2023 with a direction permitting the Advocate Commissioner to

undertake the sale of the utilities and the sale proceeds of the abovementioned

utilities should be deposited in an Escrow Account and I.A. 1802/2024 has

listed on 05.08.2024 for compliance.

4. Aggrieved by the order, the Appellant has come up in this appeal.

5. Learned Counsel for the Appellant has referred to an earlier order

passed by the Adjudicating Authority on 06.03.2024 passed in I.A. No.

5733/2023, where Adjudicating Authority has granted time to the Parties to

respond to the suggestions submitted by two Advocate Commissioner. In para

6 of the order following was observed:

"6. In order to resolve the dispute of property, the movables being stolen and the fight between the two parties on putting up the security agency, it was suggested by the two Advocate Commissioners that these machineries have not been put to use since 2018 as told by the Liquidator, and therefore, it may at best be of scrap value, nevertheless, the value is too high and to further safeguard the value, they have suggested that it should be sold without prejudice to either party and kept in Escrow Account. The Tribunal is inclined to accept this suggestion and call upon the parties to give their response immediately."

6. Learned Counsel for the Appellant submits that in pursuance of the

order dated 06.03.2024 the response of the Liquidator, that is Appellant was

submitted on 17.04.2024 copy of the uploaded documents has been brought

on record as Annexure A-7. Learned Counsel for the Appellant submits that

in paragraph 11 of the order, the Adjudicating Authority observed that

"Liquidator of MBSL has not filed any submission/response sought by

Adjudicating Authority as per order dated 06.03.2024".

7. Appellant contest the said observation and submits that response

having been filed on 17.04.2024, the said observations are incorrect and

further Adjudicating Authority ought to have considered the response before

taking the decision.

Comp. App. (AT) (Ins) No. 1207 of 2024 & I.A. Nos. 4323, 4324 of 2024 2 of 4

8. It is further submitted that the Appellant has already filed I.A.

581/2023 praying that the MBSL, Appellant sale is done by going concern

which application is still pending.

9. Sh. Krishnan Venugopal, Sr. Advocate appearing for Respondent No. 1

submits that Respondent No. 1 is assignee of the assets and Adjudicating

Authority has rightly directed for sale of the assets which are unutilized from

2018 and thefts are being taken place of the assets.

10. Learned Counsel for the Appellant as well as Counsel for Respondent

No. 1 submits that assets are part of the liquidation estate of the Appellant

whereas Respondent No. 1 submits that assets are estate of the Moser Baer

India Limited which has been assigned to the Respondent No. 1.

11. We have heard Counsel for the parties and perused the record.

12. The application which was filed by the Appellant I.A. 581/2023 is still

pending consideration where Appellant has prayed for sale of the Appellant

as a going concern. Adjudicating Authority is required to take a decision on

the said application and thereafter the question of sale of the assets may take

place.

13. We further need to notice that there is a submission of the parties

claiming assets to be respectively belonging to their liquidation estate which

also needs consideration and decision by the Adjudicating Authority to take

further steps in the matter.

14. Liquidator of Moser Baer India Limited further submits that they have

also filed an I.A. seeking possession of the assets which are pending

consideration.

Comp. App. (AT) (Ins) No. 1207 of 2024 & I.A. Nos. 4323, 4324 of 2024 3 of 4

15. In facts of the present case, we are of the view that direction of the

Adjudicating Authority for sale by the Advocate Commissioner cannot be

sustained.

16. We thus set aside the order dated 12.06.2024, revive the I.A.

5733/2023 & I.A. 1802/2024 before Adjudicating Authority. We are further

of the view that I.A. 581/2023 filed by the Appellant as well as the I.A. filed

by the Liquidator of Moser Baer India Limited be also considered and disposed

of alongwith the aforesaid IAs.

17. In view of the fact that Adjudicating Authority itself has noticed that

assets are laying unused from 2018 and there have been instances of theft

also. We are of the view that Adjudicating Authority shall endeavour to dispose

of the application as early as possible preferably within a period of 6 months

from the date the copy of this order is produced.

The Appeal is disposed of.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) himanshu/nn

Comp. App. (AT) (Ins) No. 1207 of 2024 & I.A. Nos. 4323, 4324 of 2024 4 of 4