Epc Construction India Lmited vs Srei Equipment Finance Limited

Company Appeal (AT) (Ins.) No. 14 of 2020 IN THE MATTER OF: EPC Constructions India Ltd. ....Appellant

Vs.

SREI Equipment Finance Ltd. ....Respondent

Present: For Appellant: Mr. Abhishek Swaroop, Ms. Chhari Jain, Ms. Megha Rana, Advocates For Respondent: Ms. Vatsala Rai, Ms. Vanya Chhabra, Advocates

ORDER

16.08.2022: This Appeal is directed against the order dated 18.11.2019

passed by the Hon'ble National Company Law Tribunal, Mumbai Bench in MA

1216/2019 & MA 2002/2019 filed in CP No. 1832/IBC/NCLT/MB/MAH/2017

by which an application filed by the Operational Creditor of the Corporate

Debtor seeking a direction to the appellant (Liquidator herein) to include their

claim of Rs. 14.7 crore towards rental of 181 equipments, being used by the

Corporate Debtor as the CIRP cost. In the said application the Operational

Creditor further made a prayer that the equipment which are not being used to

run the business of the Corporate Debtor may be returned.

The said application has been disposed of by the impugned order with

two directions which are contained in paragraph 5.1 and paragraph 6. In para

5.1 the 'Tribunal' has observed that:

„as a consequence, it is hereby directed to the Resolution Professional for smooth handing over of the equipments to the owner of the equipment‟. -2-

In so far as this finding is concerned, the appellant has not filed the

Appeal. The appeal has actually been filed in respect to the findings which is

contain in para 6 which reads as follows"

"As far as the liability towards Rent is concerned, the same is to be included

as "Corporate Insolvency Resolution Process cost" to be borne by the

Resolution Applicant as per the Resolution Plan."

Counsel for the Appellant has submitted that vide an order dated

31.01.2019, the Tribunal had directed the appellant to return 86 such

equipment's which were not in use by the Corporate Debtor. It is further

submitted that there are 181 equipments in possession of the present

appellant (liquidator) which are also not being used now by the Corporate

Debtor and are thus required to be returned to the operational creditor along

with 14 other equipments out of the 86 about which the order was earlier

passed on 31.01.2019. It is submitted that there are total 195 equipments

which are ready for return but the operational creditor is not coming forward to

receive the same.

Be that as it may, the concern of the Appellant in this case is about the

amount which has to be included in the claim of the appellant.

The operational creditor is claiming the amount of Rs. 14.7 crore for the

use of 181 equipment's, whereas according to the Appellant the amount of rent

comes to Rs. 1.67 crore. It is submitted that the findings recorded in para 6 of

Company Appeal (AT) (Ins.) No. 14 of 2020 -3-

the impugned order is vague and silent as to how much amount has to be

adjusted in the claim by the appellant as no decision has been taken by the

Tribunal about the veracity of the claim set up by the Operational Creditor or

the amount of rental projected by the liquidator.

It is therefore submitted that this appeal may be allowed, the

observations made in para 6 of the impugned order may be set aside and the

matter may be remanded back to the Tribunal to decide afresh indicating the

actual amount, with evidence already available before it, which is to be

included in the claim of the applicant by the liquidator.

Although, Learned Counsel for the Respondent has vehemently argued

that the operational creditor is willing to receive all the 195 equipment's from

the present appellant but due to some technical snag the delivery is not taken.

On the other hand, counsel for the Appellant has submitted that there is no

such hindrance in handing over the said 195 equipment's to the Operational

Creditor as according to him even the gate passes have also been issued.

We are not making any observation in this regard but we are of the view

that both the parties, the liquidator and the operational creditor, may sit

together and find out the solution for the purpose of smooth handing over of

the 195 equipment's which are not being used by the Corporate Debtor at

present and could be a reason for the payment of rental in future.

Company Appeal (AT) (Ins.) No. 14 of 2020 -4-

In so far as the finding recorded in para 6 is concerned, Learned Counsel

for the respondent is also ad-idem that the matter may be remanded back for a

decision on this issue by the Ld. Tribunal.

After due consideration and aforesaid discussion, the present appeal is

allowed. Finding recorded in para 6 of the impugned order is hereby set aside.

The matter is remanded back to the Ld. Tribunal with a direction to consider

the evidence not only brought on record by the operational creditor to claim Rs.

14.7 crore towards rental but also the evidence brought on record by the

liquidator on the basis of which it is submitted by him that the rental is of Rs.

1.67 crore. The decision shall be taken by the Tribunal as early as possible and

by passing a speaking order.

Parties are directed to appear before the Tribunal on 5th September, 2022.

[Justice Rakesh Kumar Jain] Member (Judicial)

[Dr. Alok Srivastava] Member (Technical) sa/rr

Company Appeal (AT) (Ins.) No. 14 of 2020