Ashok Kumar Agarwal vs Mr. Swapan Kumar Saha

IN THE MATTER OF: Ashok Kumar Agarwal ...Appellant Versus Swapan Kumar Saha & Ors. ...Respondents

Present: For Appellant : Present but appearance not marked.

For Respondents : Mr. Abhijeet Sinha, Sr. Advocate with Mr. Santosh Kumar, Mr. Abhijeet Sarkar, Mr. Artira Basu and Mr. Saikat Sarkar, Advocates.

ORDER

(Hybrid Mode)

20.02.2025 : Heard Counsel for the Appellant and Counsel for the

Respondent.

2. This Appeal has been filed by the Liquidator challenging the Order

dated 10.12.2024 passed by the Adjudicating Authority (National Company

Law Tribunal, Division Bench, Court - II, Kolkata) in I.A. (IB) No. 613 of 2020

in C.P. (IB) No. 980 of 2018, by which Order, I.A. No. 613/2020 filed by the

Liquidator under Section 66 of the Insolvency and Bankruptcy Code, 2016,

(for short 'The Code' or 'The IBC') has been rejected.

3. The Application was filed by the Liquidator alleging

variations/discrepancies of the stock of various items listed in the table,

which has been noticed in Paragraph 7 of the Order. Adjudicating Authority considered the submissions of the Parties and has held that the fact that

discrepancies exist in the stock which existed 10 years back without any

evidence of fraud, mere possibility of fraud cannot be a ground to accept the

Application.

4. Learned Counsel for the Appellant submits that there were huge

discrepancies and there was shortage of material which runs into several

crores and the mere fact that Income Tax Authorities and VAT Authorities

have not noticed the said discrepancy cannot be a ground to reject the

Application.

5. We have considered the submissions of Counsel for the Appellant and

perused the record.

6. The fact which has been brought on the record it is clear that the

discrepancies/variations in stock were in the Financial Year 2010-11 i.e., 10

years prior to filing the Application under Section 66(1) of the Code by the

Liquidator. The mere discrepancy in the stock cannot lead to any conclusion

that there was any transaction which is covered by Section 66 of the Code,

for recording a finding that transaction is covered by Section 66 of the Code

specific pleadings and materials are required which are wanting in the present

case. Adjudicating Authority has considered the submissions and come to

the conclusion that no grounds have been made out to commence any

proceedings under Section 66 of the IBC.

Comp. App. (AT) (Ins.) Nos. 138 of 2025 2 of 3

7. We are of the view that there is no error in the Order passed by the

Adjudicating Authority warranting any interference of this Appellate Tribunal.

Appeal dismissed.

[Justice Ashok Bhushan] Chairperson

[Barun Mitra] Member (Technical)

[Arun Baroka] Member (Technical) himanshu/nn

Comp. App. (AT) (Ins.) Nos. 138 of 2025 3 of 3