Get & D India Ltd vs Srikanth Dwarakanath & Ors
- CitationCompany Appeal (AT)(Insolvency) No.426 of 2019
Ratio decidendi
The rule this decision rests on
In insolvency proceedings, a third party seeking return of goods lying at the corporate debtor's site must establish a direct contractual relationship with the corporate debtor, or an agreement between itself and the corporate debtor under which the goods were supplied, before the Resolution Professional can be directed to return them; absent such an agreement, and where the goods were supplied under a contract with another entity that has asserted no claim to them, no such direction can be made. Where a claimant seeks identification and return of goods amid a large volume of supplies, and the goods cannot be readily identified as its property, the question of ownership and identity of the goods is one to be decided by a court of competent jurisdiction or the competent authority under law, not by directing the Resolution Professional to return them.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI Company Appeal (AT)(Insolvency) No.426 of 2019 IN THE MATTER OF: M/s. GET & D India Ltd. .....Appellant Vs. Mr. Srikanth Dwarakanath & Ors. ......Respondents Present : For Appellant: Mr. Arun Srikumar with Mr. Vinayak Mehrotra and Ms. Mansi Binjrajka, Advocates
For Respondents: Mr. Puneet Singh Bindra with Ms. Simran Jeet, Advocates for RP (Now Liquidator)
O R D E R
22.04.2019 - This appeal has been preferred by M/s. GET & D India Ltd.
who filed an application before the Adjudicating Authority (National Company
Law Tribunal), Division Bench, Chennai against the 'Resolution Professional',
as the Contractor -BLS Power Solution Limited with whom the Appellant had
entered into a sub-contract to execute the work of 'Corporate Debtor' and against
the 'Corporate Debtor' seeking directions to the Respondent for return of all the
assets of the Appellant lying with the 'Corporate Debtor's Project Site at Raichur
(Karnataka) and other consequent reliefs.
The Adjudicating Authority having rejected the claim, the Appellant has
challenged the impugned order dated 11.03.2019.
Company Appeal (AT)(Insolvency) No.426 of 2019 ....contd./ 2
Learned counsel appearing on behalf of the Appellant submits that an
agreement was reached between the Respondent No. 3 - 'Corporate Debtor' and
the Respondent No. 2 BLS Power Solution Limited for supply of electrical
equipment for installation at the power plant of the 'Corporate Debtor'. Having
received such contract, the second Respondent BLS Power Solution Limited
reached agreement with Appellant on 24.11.2011. Pursuant to the said
agreement, the equipment in question were supplied by the Appellant to
Respondent No. 2 - BLS Power Solution Limited, for its installation in terms of
the agreement and the Appellant delivered the same in terms of the agreement
with Second Respondent to the 'Corporate Debtor'. Therefore, according to the
Appellant it is a third party material which does not belong to the 'Corporate
Debtor' and the 'Resolution Professional' was bound to return the same to the
Appellant.
Mr. P.S. Bindra, Learned counsel appearing on behalf of 'Resolution
Professional' (now liquidator) supports the impugned order.
From the submission made on behalf of the Appellant and the evidence on
records, we find there was no direct contract between the Appellant and the
'Corporate Debtor'. The materials were supplied to the 'Corporate Debtor' by 2nd
Respondent BLS Power Solution Limited. The Respondent BLS Power Solution
Company Appeal (AT)(Insolvency) No.426 of 2019 ...contd. 3
Limited has not filed any claim that the material belongs to BLS Power Solution
Limited or to the Appellant. In the absence of any agreement reached between
the Appellant and the 'Corporate Debtor' to suggest that in terms of such
agreement that materials were supplied, we cannot direct the 'Resolution
Professional' to return the material to the Appellant. Further, a lot of supplies
being made it is not possible to identify any material that it belongs to the
Appellant or whom which can be decided by a court of competent jurisdiction /
before the competent authority of law. In the absence of any merit, the appeal
is dismissed. No costs.
[Justice S. J. Mukhopadhaya] Chairperson
[Justice A. I. S. Cheema] Member (Judicial)
[Kanthi Narahari] Member (Technical)
ss/gc
Company Appeal (AT)(Insolvency) No.426 of 2019
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