Chandrakant Khemka vs Santanu Bhattacharjee

I.A. No. 305 of 2024 in Comp. App. (AT) (Ins) No. 1064 of 2023 & I.A. No. 1397 of 2024 IN THE MATTER OF: Chandrakant Khemka ...Appellant

Versus

Santanu Bhattacharjee & Ors. ...Respondents

Present: For Applicant : Mr. Gaurav Mitra, Mr. Ashish Choudhury, Ms. Lavanya Pathak, Mr. Abhishek, Adv. For Non-Applicant : Mr. Abhijeet Sinha, Sr. Adv. with Mr. Aman Gupta, Mr. Akarsh Pandey, Adv. Mr. Saurav Jain, RP Mr. Rachit Mittal, Aman Mishra, Adarsh, Adv. for CoC

ORDER

02.04.2024: This order shall dispose of I.A. No. 305 of 2024 filed by

Respondent No. 2 to 4 under Rule 11 of the NCLAT Rules, 2016 for seeking

clarification of the order dated 11.08.2023 passed by this court in CA (AT)

(Ins) No. 1064 of 2023.

2. On 07.08.2023 the Tribunal pronounced the order in IA

(IBC)/1082(KB)/2023 and I.A (IBC)/1083(KB)/2023 which read as under:-

"(a) When these IAs were taken up for hearing today, it was stated by the Ld. Counsel appearing for the RP that in terms of resolution passed by the CoC at Page No. 38 of the reply in I.A No. 1082 of 2023 and Page No. 39 of the reply in I.A. No. 1083 of 2023, the property as mentioned in relief (para -a) in both the IAs in not required to be held and the same shall be handed over to the Applicant.

(b) In view of this statement made by Ld. Counsel appearing for the RP, prayer (a) in both the IAs is disposed of with a direction to the RP to hand over this property, if already not handed over, within two weeks from the date of this order.

(c) As far as other reliefs in the nature of payment of occupational charges is concerned, post these IAs for hearing on 04.09.2023."

3. The present appeal has been filed by the suspended director of the

Corporate Debtor aggrieved against the aforesaid order. In this appeal, notice

was issued on 11.08.2023 and operation of the impugned order was stayed

till the next date of hearing i.e. 27.09.2023. The order dated 11.08.2023 is

reproduced as under:-

"This appeal is directed against the order dated 07.08.2023 by which the Adjudicating Authority (National Company Law Tribunal, Kolkata Bench, Court-1) had disposed of two applications bearing I.A. (IB) No. 1082/KB/2023 and I.A. (IB) No. 1083/KB/2023, both purported to have been filed by the Noble Dealcom Pvt. Ltd. (I.A. (IB) No. 1082/KB/2023) and Sincere Security Pvt. Ltd. (I.A. (IB) No. 1083/KB/2023) for eviction of the Corporate Debtor from the premises in question which is stated to be a part of (White House Property) which has been occupied by the Company (now Corporate Debtor) by way of leave and license agreement dated 27.02.2020.

2. The UCO Bank (Financial Creditor) filed an application under Section 7 of the Code against Nandini Impex Private Limited (Corporate Debtor) which was admitted on 20.09.2022. The said order came to be challenged in Company Appeal (AT) (Insolvency) No. 1064 of 2023 2 of 4 Company Appeal (AT) (Insolvency) No. 1261 of 2022 'Chandrakant Khemka Vs. UCO Bank & Anr.' which was dismissed on 11.01.2023 and that order attained finality.

3. During the pendency of the IRP proceedings, the aforesaid two applications were filed by the said owners for seeking eviction from part of the property in question.

4. Counsel for the Appellant has submitted that they have filed an objection to the application which has been assigned No. 1412 of 2023 but while his objection was pending, the Resolution Professional suffered a statement in the proceedings, on the basis that the CoC has passed a resolution that it would be just and expedient to hand over the vacant possession of the premises in question to the owners in order to save the unnecessary expenses.

5. Counsel for the Appellant has submitted that at the time when the application under Section 7 was admitted, the Adjudicating Authority declared the moratorium in terms of Section 14 of the Code but when the impugned order was passed the Adjudicating Authority did not even care to look into the provision of Section 14 much less 14(1)(d) which completely prohibits the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor.

6. Counsel for the Appellant has thus submitted that there has been an unholy haste on the part of the Adjudicating Authority in passing the order only on the basis of the statement made by the RP on the basis of the alleged resolution passed by the CoC which has also been disputed by Appellant on the ground that in the 6th Meeting of the CoC, it has been decided to put this proceeding on hold as the RP wanted to take legal opinion as to whether such kind of statement can be given or not.

7. Counsel for the Appellant has further submitted that Section 14 of the Code has a great significance in the scheme of the Code in as much as Section 74 has been provided for the purpose of punishment for contravention of moratorium or the resolution plan. In this regard, Counsel for the Appellant has referred to Section 74(2) of the Code to contend that where any creditor violates the provisions of section 14, any person who knowingly and wilfully authorise or permit such contravention is liable for punishment. It is submitted that the CoC had no jurisdiction to pass the resolution for handing over the property in possession of the Corporate Debtor as a tenant (lessee) without looking into the provision of Section 14(1)(d) of the Code.

8. On the other hand, counsel for Respondent has vehemently argued that after the dismissal of appeal filed by the Appellant (Suspended Board of Directors of the Corporate Debtor), had no locus standi to file this appeal.

9. He has further submitted that all through the CoC has passed the Resolution for handing over vacant possession of the demised premises in order to keep the company (Corporate Debtor) as a going concern as the Corporate Debtor has been incurring huge expenses of Rs.12 lacs per month towards rent.

10. It is also submitted that Section 20(2)(e) of the Code defines the duties of the RP which gives right to follow any procedure for keeping the Corporate Debtor as a going concern and in pursuance thereof the CoC as well as RP took the correct decision by suffering the statement before the Adjudicating Authority to handover vacant possession of the premises in question to the owners.

11. In reply, Counsel for the Appellant has argued that the Appellant has the locus standi to maintain this appeal because the RP is not looking after the interest of the Corporate Debtor in whose hands the entire company has been given by virtue of the order of admission. It is also submitted that Section 20(2)(e) of the Code is not the panacea for all the ills.

12. After hearing Counsels for the parties, we are of the prima facie view that there are arguable points involved in this appeal, therefore, we issue a formal notice to the Respondents. In this stage, Counsel for the Respondents present in Court accepts notice and prays for time to file reply.

13. Let the reply be filed within two weeks i.e. up to 28th August, 2023 with advance copy to the Appellant. Rejoinder, if any, be filed by the Appellant within two weeks thereafter up to 16th September, 2023.

List for hearing on 27th September, 2023.

Till then, operation of the impugned order shall remain stayed."

4. The Respondent No. 2 to 4 pressed both these applications i.e I.A. No.

1082 and 1083 of 2023 before the Tribunal in respect of prayer (b) and (c) i.e.

"b) Direction be made upon the respondents to make payment of a sum of Rs.

3,01,66,448/- (plus applicable GST) as Corporate Insolvency Resolution

Process costs to the applicants as pleaded in paragraph 21 above and further

make payment of a sum of Rs. 6,00,000/- alongwith interest @18% per

annum, per month from the present until delivery of possession; c) In the

event, the Hon'ble Tribunal is coming to the conclusion that the said premises

situated at the Ground Floor (part of rear portion) comprising of 2400 sq.ft of

property at 1/18, 1/19 and 1/20, ward no. XV at M.M. road ( Eastern Rear

Portion) bearing municipal no. 1/18-20, white House, rani Jhansi Road, New

Delhi - 110055 is required to keep the Corporate Debtor as a going concern,

an order be made directing payment of Rs. 6,00,00/- per month every English

calendar month, from the present to the applicants;"

5. The Tribunal deferred the consideration of these prayers till the disposal

of the appeal by this Tribunal. The Order dated 05.01.2024 passed by the

Tribunal in this regard is reproduced as under:-

"1. Ld. Counsel on both sides present.

2. I.A. No. 1082 and 1083 of 2023 - Ld. Counsel for the Applicant states that the operation of order dated 07.08.2023 passed by this Tribunal in both IAs regarding payment of CIRP cost has been stayed by Hon'ble NCLAT vide order dated 11.08.2023.

3. Therefore, we defer the consideration of both IAs till the disposal of the appeal by the Hon'ble NCLAT.

4. Post these matters for consideration on 19.02.2024."

6. Aggrieved by this order, the present application has been filed by

Respondent No. 2 to 4 for seeking clarification about the order dated

11.08.2023 by which the operation of the impugned order was stayed.

7. It is contended by Counsel for the Applicant (R2 to 4) that the operation

of the impugned order was stayed in respect of prayer (a) which was decided

and not in respect of prayers (b) and (c) which were not decided and postponed

to a date to be decided later.

8. This argument is vehemently contested by Counsel for the Appellant on

the ground that prayer (a), (b) & (c) are interconnected and since this appeal

is coming for hearing on 04.04.2024, therefore, this application may not be

entertained at this stage.

9. We have heard Counsel for the parties and after examining the record

are of the considered opinion that prayers (b) and (c) were not decided by the

Tribunal by way of the impugned order dated 07.08.2023 because it has been

observed in the said order that "as far as other reliefs in the nature of payment

of occupational charges is concerned, post these IAs for hearing on 04.09.2023". Therefore, the Tribunal shall continue with the decision of the

applications regarding prayers (b) and (c) and decide the same but the

decision of the applications regarding prayers (b) and (c) shall be subject to

the outcome of the present appeal and in case prayers made by the Applicant

(Respondent No. 2 -4) is allowed then no payment shall be made to the

applicant till the decision of this appeal. It is needless to mention that the

Tribunal shall also consider the application i.e I.A. No. 1412 of 2023 filed by

the Appellant. The application is disposed of accordingly.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Mr. Naresh Salecha] Member (Technical)

[Mr. Indevar Pandey] Member (Technical)

Sc/rr