Bimal Kumar Jejani & Ors vs Star Mineral Resources Pvt. Ltd. ...

[Arising out of the Order dated 07.12.2023, passed by the 'Adjudicating Authority' (National Company Law Tribunal, New Delhi, Court-III), in IA No. 2490/2022 in CP (IB) No. 607/ND/2018]

IN THE MATTER OF: 1. Bimal Kumar Jejani s/o Om Prakash Jejani r/o 3D Mayberry Apartment, Sahay Road, Lalpur, Ranchi - 834001. ...Appellant No.1

2. Sachin Sehgal s/o Subhash Chander Sehgal Singh, R/o 41, Glanleam Road, Stanmore, London HA 74 NW, United Kingdom Through power of Attorney Bimal Kumar Jejani s/o Om Prakash Jejani r/o 3D Mayberry Apartment Sahay Road, Lalpur, ...Appellant No. 2 Ranschi - 834001

3. Ravindra Banthia, s/o Lt. Roop Chand Bathia, R/o Srijan Heritage, ...Appellant No.3 135 A SP Mukherjee Road, Kolkata 700026 Versus

1. M/s Star Mineral Resources Pvt. Ltd. (dissolved) through its Liquidator Mr. Naresh Kumar Bansal KD - 138, First Floor, Pitampura Delhi - 110034 ...Respondent

Present: For Appellant : Ms. Sakshi Tikmany & Mr. Akshat Gupta Advocates. For Respondent : Mr. Naresh Kumar Bansal & Ms. Kritika Bansal, Advocates. JUDGMENT

(Hybrid Mode)

[Per: Justice Mohd. Faiz Alam Khan, Member (Judicial)]

The instant appeal under Section 61 of the Insolvency and

Bankruptcy Code, 2016, has been preferred by the Appellant challenging

the order dated 07.12.2023 passed by the National Company Law Tribunal,

New Delhi Court III pertaining to I.A. No. 2490 of 2022 in CP (IB) No.

607/ND/2018 wherein certain observations have been recorded by the

Tribunal against the Appellants.

2. Brief facts which appears to be necessary for the disposal of the

instant appeal are that an application under Section 9 of the Insolvency and

Bankruptcy Code, 2016 (IBC) was filed by the Operational Creditor i.e.

M/s Platina Bulkers Private Limited Against the Corporate Debtor i.e. M/s

Star Mineral Resources Private Limited. The said application was admitted

and CIRP was initiated vide order dated 17.12.2018 passed by the

Adjudicating Authority. A moratorium was accordingly declared and Mr.

Akarsh Kashyap was appointed as IRP who was subsequently confirmed as

RP.

3. As the resolution professional could not call for any resolution plan

for want of specific information pertaining to the assets and liabilities and

the account book of the corporate debtor the liquidation proceedings were

initiated by learned Tribunal vide order dated 10.02.2020 and Mr. Naresh

Kumar Bansal was appointed as the liquidator.

4. The Liquidator appears to have made all attempts to collect financial

information pertaining to the Corporate Debtor(CD), its accounts books,

Company Appeal (AT) (Insolvency) No. 224 of 2024 2 of 14 assets and liabilities etc. however, as per the stand of liquidator the

Suspended Directors of the CD did not supply required information and

thereafter the liquidator had moved an application bearing I.A. No. 2490 of

2022 requesting learned Tribunal to exclude the time period of 746 days

from the total time consumed for completion of resolution/liquidation of

Corporate Debtor in terms of Section 60 (5) of the IBC read with regulation

44(2) of the Insolvency and Bankruptcy Board of India (Liquidation Process)

regulations, 2016 herein offer called as (Liquidation Regulations) which

has been disposed by passing the impugned order and in para 7(ii) of the

same following observations have been made by learned Tribunal

"We find that this Adjudicating Authority (Bench-III) vide order dated 607(ND)/2018. Since, then the suspended Board of Directors of the 17.12.2018 was pleased to admit the Company Petition (IB). Corporate Debtor have not been cooperating with the IRP/RP and with the Liquidator to provide any statutory books and accounts. This Adjudicating Authority issued private notice, summons and warrants still no one appeared and provided any details. Resolution professional had filed an application under section 70 of the IBC, 2016 which was forwarded to the IBBI for action. IBBI had filed the prosecution against all the members of the Board with the Court of District and Sessions Judge, South West, Dwarka. New Delhi as Ct. Case 170/2020 and the case is pending for execution. After analyzing all the reasons mentioned above we are of the view that no useful purpose will be served in exclusion or extension is granted to the Liquidator."

5. The Appellants who are the Suspended Directors of the CD,

feeling aggrieved by the above observation of learned Tribunal has

preferred this appeal with the prayer to quash/set aside the aforesaid

observation made by learned Tribunal in paragraph 7 (ii) of the

impugned judgment.

Company Appeal (AT) (Insolvency) No. 224 of 2024 3 of 14

6. We have heard Ld. Counsel for the parties and have perused the

record as well as the written submissions filed by the parties.

7. Learned counsel for the Appellant submits that the Appellants

were neither involved in day to day affairs or management or

operations of the Corporate Debtor nor they have ever received any

communication regarding the CIRP process and as such there could

not be any non-cooperation from their end, as observed by learned

Tribunal.

8. Elaborating further, it is submitted that in April 2024 Mr.

Gagan Shukla, a Promoter Director of the CD, had approached

appellants seeking financial support and assured guaranteed returns

of at least 2% per month. Believing on the proposal made by Mr.

Gagan Shukla, the appellants on 16.07.2014 agreed to invest Rs.

5,00,00,000/- (Five Crores) in the Corporate Debtor, partly by way of

investment in equity shares of the CD and partly by lending interest

free loan and accordingly an agreement was executed on 16.07.2014

and Rs. 5,00,00,000/- (five Crore) as well as additional sum of Rs.

49,99,950/- (Forty-Nine lacs Ninety-Nine Thousand Nine Hundred

Fifty) was paid to the CD and as per the terms of the agreement 51%

of the equity in the CD would be held by the financers and they would

further have three Directors on the Board of Corporate Debtor, and it

is in this background the Appellants were nominated to the Board of

Directors by the financers as non-executive directors.

9. It is further submitted that the managing of day to day affairs

and operation of the CD had remained with the promoter directors

Company Appeal (AT) (Insolvency) No. 224 of 2024 4 of 14 only and a specific clause 1(iii) in this regard was written in the

agreement executed at between the parties.

10. It is further submitted that the entire business of the Corporate

Debtor was handled by the previous Board of Directors headed by Mr.

Gagan Shukla and Appellants were not involved at all therein and

they have not signed any documents or any financial statements

including balance sheets or Profit and Loss statements or annual

returns/ annual reports of the CD.

11. It is further submitted that the Appellants are themselves victim

of a fraud perpetrated on them by the CD and Mr. Gagan Shukla and

they have suffered huge losses of more than 5,00,00,000/- (five

crores) and in this regard a police complaint has also been filed by

them on 23.12.2022.

12. It is also submitted that no notice of the meeting of the CoC was

ever issued to the Appellants and it appears that the emails and

communications were only sent by the IRP to Mr. Gagan

Shukla/Promoter Director of the CD and no communication was ever

received by the Appellants regarding on going CIRP of the CD.

13. It is also submitted that even no notice of the application moved

under Section 19(2) of IBC was ever received by the Appellants.

14. It is also submitted that the Resolution Professional has also

filed an application before the learned Tribunal under Section 70(1) of

the IBC for prosecution of the officers of the Corporate Debtor

including the Appellant therein. However, there was no specific

Company Appeal (AT) (Insolvency) No. 224 of 2024 5 of 14 allegation of non-cooperation against the Appellants and only vague

allegations were levelled therein.

15. It is vehemently submitted that the Appellants have never

received any communication of the resolution process of the CD and

since the appellants were not possessing any document pertaining to

the CD, they were not in a position to provide the same to the RP or

Liquidator.

16. It is also submitted that the process issued by learned Tribunal

through registered post has also not ever served on Appellants and the

record of the Tribunal would reveal itself that the notice sent to the

Appellant No. 1 has been returned with insufficient address and

endorsement while the Appellant No. 2 is a resident of United

Kingdom for the last ten years.

17. It is also submitted that even the Dasti warrants taken by the

RP/IRP has not been served on the Appellants and they came to know

the pendency of the CIRP against the Company Debtor when they

received the process from the criminal court of Delhi pertaining to the

prosecution initiated against them and they immediately sent

communication to the Liquidator and also attended the meeting of the

Committee of stakeholders of the CD on 29.04.2023.

18. It is further submitted that the application moved by the

respondent under Section 19 and 70 of the IBC pertaining to the

alleged non-cooperation of appellants have yet not been decided by the

Tribunal and there was absolutely no need to make impugned

observations in disposal of the application moved by the liquidator for

Company Appeal (AT) (Insolvency) No. 224 of 2024 6 of 14 extension of time. Learned counsel for the appellants has relied on the

law laid drawn by Hon'ble Supreme Court in 'Uma Nath Pandey and

Ors. Vs. State of U.P and Anr.' reported in (2009) 12 SCC 40.

19. It is also submitted with considerable force that the aforesaid

observation has been recorded by the learned Tribunal without

providing any opportunity of being heard to the Appellants and

therefore the same violates the principle of natural justice thus the

same be quashed/set-aside.

20. Learned counsel for the Respondent/Liquidator submits that

the instant appeal is not maintainable in view of the provision

contained under Section 61 of the IBC as the Appellant may not be

classified as 'aggrieved person'. While drawing the attention of this

court towards many documents available on record it is submitted

that Appellant No. 3 Ravindra Banthia has deliberately mentioned his

wrong address in order to misguide the Appellate Tribunal whereas as

per the MCA data base, correct address of the respondent no. 3 is

mentioned and all communication have been sent on this address.

21. It is further submitted that all communications were sent to the

Appellants on their emails provided by them in the MCA data base

and also available on Master Data with a specific direction to them to

handover the books of accounts of the CD and other requisite

information and documents, however, no response was received from

any of the Suspended Directors and thereafter on 21.01.2019 an

application under Section 19(2) and 19(3) of the IBC bearing No. CA

121/2019 in CP No. IB/607/ND/2018 was filed by him requesting the

Company Appeal (AT) (Insolvency) No. 224 of 2024 7 of 14 Adjudicating Authority to direct Suspended Directors to supply all

desired information and books of accounts of the Corporate Director,

where on learned Tribunal has passed an order on 13.05.2019

directing the IRP to issue notices to all respondents.

22. It is further submitted that on 18.05.2019 IRP issued notices to

all respondents including auditor of the CD which were duly served on

appellants Sachin Sehgal and Ravindra Kumar Banthia while the

other envelops were returned back with the remarks of 'move out' for

Mr. Gagan Shukla and Ms. Kalyani Shukla and 'left out' for Mr. Bimal

Kumar Jejani.

23. It is further submitted that after taking charge from the earlier

RP, Mr. Naresh Kumar Bansal newly appointed RP also wrote to all

Suspended Directors through emails seeking requisite information

relating to Corporate Debtor but the same was never supplied and in

this regard the RP was compelled to file an application under Section

70 of IBC bearing No. 768 of 2019 and a separate complaint was also

filed on 21.10.2019 with IBBI for taking necessary action against the

Suspended Directors.

24. It is further submitted that on 25.10.2019 under the orders of

the learned Tribunal notices were sent with regard to the application

filed under Section 70 of the IBC, to all Suspended Directors for their

personal appearance and though the notices were served through

speed post and email but there was no response from the Suspended

Directors except Mr. Gagan Shukla and M/s Kalyani Shukla.

Company Appeal (AT) (Insolvency) No. 224 of 2024 8 of 14

25. Learned counsel for the respondent further submits that the

Suspended Directors including Appellants have deliberately avoided

their presence despite emails were sent to them on 03.08.2019,

05.08.2019, 06.08.2019, 12.08.2019, 24.08.2019, 25.10.2019,

30.10.2019, 05.11.2019, 06.02.2021, 08.02.2021, 16.02.2021,

21.04.2023, 25.04.2023, 29.04.2023 and 02.05.2023.

26. It is also submitted that on 09.12.2023 the respondent

communicated to all concerned persons about the dissolution order

dated 07.12.2023 passed by learned Tribunal which was admittedly

received by Appellant Mr. Bimal Jijani, while surprisingly no such

process issued to him in the past was acknowledged by him which

was sent on the same email and portal address.

27. While drawing attention of this Appellate Tribunal on the

observations made at in para 7(ii), it is submitted that these

observations have been made on the basis of the record available with

the Tribunal and could not be said to have been made without any

substance and material.

28. It is further submitted that it is hard to believe that after

investing money to the tune of Rs. 5,49,99,950/-(Five Crore Forty-

Nine Lacs Ninety-Nine Thousand Nine Hundred Fifty) on or around

16.07.2014 and after becoming the Director in the CD and having

51% equity the Appellants were not aware of anything with regard to

the CIRP of the CD and of the liquidation of the same.

29. It is further submitted that the Appellant were actively involved

in the day to day affair of the CD and were having knowledge of all the

Company Appeal (AT) (Insolvency) No. 224 of 2024 9 of 14 process issued to them and all the communications, notices, private

summons were dispatched to them at their last recorded address with

MCA Data base and if there is any change in the same, the directors

were legally liable to inform the MCA with regard to the alleged

change of address as provided under rule 12 of the Companies

(appointments and qualification of directors) rules 2014.

30. It is submitted with considerable force that the Appellants have

been communicated on their email addresses provided by them in the

MCA Data base and the Appellants have now appeared and filed the

appeal as they are being criminally prosecuted and in order to carve

out a defence in the criminal prosecution they have, filed the instant

appeal which is liable to be dismissed.

31. Having heard learned counsel for the parties and having

perused the record, it is transpired that Appellants are claiming

themselves to be aggrieved by the observations of learned Tribunal

made in para 7 (ii) of the impugned order wherein it is observed that

the Suspended Board of Directors of the CD have not been

cooperating with the IRP/RP and also with the Liquidator to provide

any statutory books and accounts and despite Adjudicating Authority

issued private notice, summons and warrants, to them but no one

appeared and provided requisite information and also that on a

complaint filed by the RP, They are being criminally prosecuted.

32. The record would sufficiently demonstrate that

IRP/RP/Liquidator have sent processes of the Tribunal to the

Appellants and other Suspended Directors of the CD on their email

Company Appeal (AT) (Insolvency) No. 224 of 2024 10 of 14 addresses and postal addresses, provided in the MCA data base by

themselves, as the Directors of the CD.

33. It is also evident that when IRP/RP/Liquidator has sent various

communications to the Appellants and other Suspended Directors of

the CD, and in pursuance of the same Promoters Directors of the CD

namely Gagan Kumar Shukla and Ms Kalyani Shukla have appeared

before the Tribunal and also in the meeting of the CoC, thus when

process has been sent on the official email of the appellants which

was available on the MCA Data and two directors have appeared on

account of such service, it could not be believed that appellant were

not served by these processes. Moreover, Appellant No. 2 and 3 have

also been served through process sent via post.

34. It is also conspicuous that notices and process of the Tribunal

were sent to the Appellants and other Suspended Directors of the CD

on their email Id and postal address as recorded in the records of

MCA. We find force in the submissions made by learned counsel for

the Respondent that if Appellants are claiming that they were not

residing at the address which they have provided in the MCA Data

base or to ROC they should have informed the appropriate authority

with regard to the alleged change of address, which is not emerging

from the record. The fact of issuance of notices and other process

under the orders of the Tribunal is conspicuously evident from the

record furnished before this Tribunal and it also appears to be an

admitted situation that no record has either been given to the IRP/RP

Company Appeal (AT) (Insolvency) No. 224 of 2024 11 of 14 or Liquidator by the Promoter Directors namely Gagan Kumar Shukla

and Ms Kalyani Shukla, nor by the directors who are Appellants

before us and in this scenario the order pertaining to the dissolution

of the CD was passed by the Adjudicating Authority by passing the

impugned order. It is also hard to believe that despite investing about

5.5 crores in the CD, the Appellant Directors would not be having any

information with regard to the commencement of the CIRP of CD and

also of its liquidation. What is transpired from the record is that on a

complaint made by RP to the IBBI criminal prosecution has been

launched against the Appellants, and they are appearing before the

criminal court and the instant appeal appears to have been filed only

for the purpose of taking a defence therein, otherwise there appears

no reason for the appellants to have felt aggrieved by impugned

observations made by tribunal in para 7(ii) as only facts have been

reiterated by the Tribunal, in order to justify dissolution of the CD.

35. Keeping in view all the facts, circumstances and documentary

evidence available on record, we are of the considered view that

learned Adjudicating Authority has done nothing wrong in observing

that Suspended Board of Directors of the Corporate Debtor were not

cooperating with the IRP/RP/Liquidator and did not provide any

statutory books and accounts and also in observing that despite

issuing private notice, summon and warrants appellant did not

appear and provided requisite details pertaining to the CD. It is also

worth noticing that in the same breath learned Tribunal has also

Company Appeal (AT) (Insolvency) No. 224 of 2024 12 of 14 recorded that on the basis of a complaint lodged by the RP with the

IBBI the prosecution against all the members on the Board of the CD

has been initiated and the same is pending for adjudication in District

and Session Court South West Dwarika, New Delhi. Thus in para No.

7(iv) ld. Tribunal has only recorded facts in order to arrive at a

conclusion as to whether the liquidation proceeding of the CD be

continued or an order of its dissolution be passed and in fact the

tribunal in impugned para has given reasons for opting dissolution of

CD.

36. So far as the reliance of learned counsel for the appellants on

Uma Nath Pandey (supra) is concerned the said law propounded by

the Hon'ble Supreme Court may not be of any help to appellants, as in

the instant case at hand IRP/RP and Tribunal has made sincere

efforts for providing opportunity of being heard to the appellants and

so much so, coercive process has also been issued against them, but

they did not appear in time before the Tribunal. Thus, there appears

no violation of any principle of natural justice in this case.

37. We are of the view that the observations (narration of facts)

made by the Tribunal in para No. 7(ii) of the impugned order are

emerging from the record and could not be said to have been made

without any basis and we do not find any ground on the basis of

which the impugned order or observations made by the learned

Tribunal in para No. 7(ii) of the same may be interfered with.

Company Appeal (AT) (Insolvency) No. 224 of 2024 13 of 14

38. Thus, in view of the discussion made herein before and reasons

recorded we do not find any good ground to interfere either in the

impugned judgment or in the observations made by learned Tribunal

in para 7 (ii) of the same, resultantly. The appeal filed by the Appellant

thus fails and is dismissed as such. However, there would not be any

order for cost. Pending I.A. if any is also disposed of accordingly.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Justice Mohd. Faiz Alam Khan] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

New Delhi.

06.08.2025.

Shweta

Company Appeal (AT) (Insolvency) No. 224 of 2024 14 of 14