Gp Capt Atul Jain vs Tripathi Hospital Pvt Ltd

GP Capt. Atul Jain ....Appellant

Vs.

Tripathi Hospital Pvt. Ltd. ....Respondent

Present: For Appellant:- Dr. Gp Capt. Atul Jain. For Respondent:-

ORDER

(20th September, 2022)

Justice Anant Bijay Singh;

I.A. No. 955 of 2022 has been filed by the Appellant in Company Appeal

(AT) (Ins.) No. 655 of 2020.

2. Heard Dr. Gp Capt. Atul Jain who appeared in person on I.A. No. 955 of

2022. The Appellant while pressing the I.A. No. 955 of 2022 submits that he

has preferred the instant Appeal being aggrieved and dissatisfied by the order

dated 25.06.2020 passed by the Adjudicating Authority (National Company

Law Tribunal, Allahabad Bench) in Company Petition (IB) No. 457/ALD/2019

whereby the Adjudicating Authority dismissed the application filed by the

Appellant under Section 7 of the Insolvency and Bankruptcy Code, 2016 (for

short IBC) for initiation of 'Corporate Insolvency Resolution Process' of the

Corporate Debtor i.e. "Tripathi Hospital Pvt. Ltd.". The Adjudicating Authority 2

has held that the appellant failed to produce any document to show that the

appellant has given the money to the corporate debtor. It was contented that

the amount was transferred to the personal account of the intermediary as well

as the personal account of the directors but failed to establish that the amount

was given to the corporate debtor, therefore, the case of the appellant does not

come under any of the provisions of Section 5(8) (a) to (i) of the IBC, thus

cannot be considered as financial debt nor the appellant comes under the

definition of financial creditor in view of Section 5 (7) of the IBC.

3. The Appellant was heard on 13.09.2022, the Ld. Counsel for the

Respondents No. 1, 2, 3 & 8 informed that no CIRP have been initiated against

the Respondent No. 1 till date in any other matter, so he was directed to file

Affidavit in this context and the matter was directed to be listed on 11.10.2022

for hearing. In between I.A. No. 955 of 2022 has been filed by the Appellant

with a prayer to immediate stay on sale of immovable property of the company

by UBI & SIDBI (Annexure A at page 6 of the I.A.).

4. The Appellant invoking the provision of Section 11 of the NCLAT and also

judgment passed by this Appellate Tribunal in Company Appeal (AT)

(Insolvency) No. 77 of 2022 referring to paragraphs 9, 10, 13 & 17 submitted

that the Division Bench of this Appellate Tribunal have held that under Rule 11

of the NCLAT Rules, this Appellate Tribunal have power to pass an interim

order(s), therefore, this Bench may allow the I.A. No. 955 of 2022 while

I.A. No. 955 of 2022 in Company Appeal (AT) (Ins.) No. 655 of 2020 3

exercising the power under Rule 11 and immediate stay on sale of immovable

property of the company by UBI and SIDBI.

5. The Appellant further relied on another order passed by this Appellate

Tribunal in the matter of NUI Pulp and Paper Industries Pvt. Ltd. Vs. M/s.

Roxcel Trading GMBH [Company Appeal (AT) (Insolvency) No. 664 of 2019] dated

17.07.2019 whereby this Appellate Tribunal have held in paragraph 12 "........it

is always open to the Adjudicating Authority to pass ad-interim order before

admitting any application under Section 7 or 9 or 10 of the IBC". Against the said

order dated 17.07.2019, Civil Appeal was also filed before the Hon'ble Supreme

Court which was dismissed confirming the Order of this Appellate Tribunal.

6. The Appellant further referred to paragraph 3 of Circular of Reserve Bank

of India dated 19.12.2017, Para 3 is to the following effect:

"3. All financial creditors regulated by RBI are advised to adhere to the relevant provisions of IBC, 2016 and IBBI (IUs) Regulations, 2017 and immediately put in place appropriate systems and procedures to ensure compliance to the provisions of the Code and Regulations."

7. The Appellant further submitted that he has filed I.A. No. 955 of 2022

but no order was passed. Further the matter was heard on merits on

04.05.2022 but a request was made by the Appellant to hear the said I.A. but

prayer was refused and the matter was again listed on 08.07.2022, on that day

the said I.A. was not available on the record and the matter was adjourned for

24.08.2022, on that day the Appellant was heard on merits and the Ld. I.A. No. 955 of 2022 in Company Appeal (AT) (Ins.) No. 655 of 2020 4

Counsel for the Respondents No. 1, 2, 3 & 8 was directed to take instructions

as to whether CIRP Proceedings have been initiated against 'Tripathi Hospital

Pvt. Ltd.' or not. Thereafter, the Appeal was taken up on 13.09.2022. The Ld.

Counsel for the Respondent No. 1 informed that no CIRP proceedings have

been initiated against the Respondent No. 1 till date in any other matter,

further he was directed to file affidavit to this effect and the matter was

adjourned to 11.10.2022 and on 15.09.2022 the Appellant mentioned the I.A.

No. 955 of 2022 to take up for hearing on 16.09.2022 and was heard.

8. It is strenuously argued by the Appellant is that if the Respondent

Company and UBI are not restraining from selling or alienating any third party

rights on the assets till the disposal of the Appeal, the Appeal would stand

infructuous as it is main objective of the Respondents to sell whole of the

assets.

9. The Appellant relied on a judgment of this Appellate Tribunal in

Company Appeal (AT) (Ins.) No. 664 of 2019 "NUI Pulp and Paper Industries Pvt.

Ltd. Vs. M/s. Roxcel Trading GMBH" wherein this Tribunal has observed as

follows:

"12. The Appellant having not given any undertaking or made any specific reply and refused to say that they have no such intention, we are of the view that it is always open to the Adjudicating Authority to pass ad-interim order before admitting any application under Section 7 or 9 or 10 of the 'I&B Code'. However, on reply, once the application is

I.A. No. 955 of 2022 in Company Appeal (AT) (Ins.) No. 655 of 2020 5

admitted, then the order of 'Moratorium' under Section 14 will follow, taking away the right of the Board of Directors of the 'Corporate Debtor' to take any decision on behalf of the 'Corporate Debtor' prohibiting others from taking any action against the 'Corporate Debtor' which is different from interim order. On the other hand, if application under Section 7 or 9 or

10 is rejected, the interim order will automatically stands vacated."

In the aforenoted matter also, the 'Admission' under Section 9 of the

Code was pending. When the matter was carried on an Appeal to the Hon'ble

Supreme Court, the Hon'ble Supreme Court in Civil Appeal No(S). 6697/2019

noted as follows:

"1. No case is made out to interfere with the impugned order(s) passed by the Tribunal. The appeal is, accordingly, dismissed.

2. Pending application(s), if any, shall stand disposed of."

10. The Appellant also relied on another judgment of this Tribunal in the

case of "Yes Bank Ltd. Vs. Dewan Housing Finance Corporate Limited & Anr.,

Company Appeal (AT) (Ins.) No. 77 of 2022" in which this Tribunal observed as

follows:

"........... Referring to above Judgement of Hon'ble Supreme Court, Learned Counsel for Respondent submits that on 10.09.2021 possession taken by the Appellant in exercise of power under Section 13(4) of the SARFAESI Act, 2002 is not in accordance with law, since although 60 days notice was

I.A. No. 955 of 2022 in Company Appeal (AT) (Ins.) No. 655 of 2020 6

issued on 31.07.2021 under Section 13(2) but before expiry of 60 days, the possession is claimed to be taken. The Adjudicating Authority has taken into consideration of taking possession by Appellant before expiry of 60 days. The possession having not been taken in accordance with law the title of the property still vests in Corporate Debtor, which need to be protected to safeguard the interests of Corporate Debtor as well as other Creditors.

17. The Order passed by the Adjudicating Authority on 31st December, 2021 indicates that the Status-Quo Order dated 30.09.2021 has been continued till the next date of hearing. We have been informed by the Learned Counsel for the parties that the matter both on I.A. 4516 of 2021 as well as the main CP (IB) No. 472/2021 has been fixed for 15th February, 2022. The Order dated 30.09.2021 is now continuing for last more than three months and now 15th February, 2022 is the next date fixed in the matter, we are of the view that at this stage it is not necessary for us to express any final opinion regarding the various issues raised by the parties regarding title and ownership of the immovable properties whether it is still in ownership of the Corporate Debtor or stand transferred to Yes Bank Limited. What is nature of claim of the Financial Creditor-Dewan Housing Finance Corporate Limited quo the immovable property which is also mortgaged to Yes Bank Limited, all these issues have to be considered and decided by the Adjudicating Authority finally. The Adjudicating Authority has only continued Interim Injunction dated 30.09.2021 till the next date of hearing i.e. 15 th February, 2022 fixed before the Adjudicating Authority. We hope and trust that the Adjudicating Authority shall consider the I.A. I.A. No. 955 of 2022 in Company Appeal (AT) (Ins.) No. 655 of 2020 7

4516 of 2021 and the main Company Petition i.e. CP (IB) No. 472/ND/2021 on the next date or as early as possible thereafter.

18. We thus do not find any ground to interfere with the Order dated 31st December, 2021 at this stage. However, as observed above the I.A. 4516 of 2021 as well as main petition i.e. CP(IB) No. 472/ND/2021 be heard and decided at an early date.

Both these Appeals are disposed of, accordingly."

11. Keeping in view the facts and circumstances of the present case on hand,

we are of the considered view that limited protection till the next date of

hearing, be granted to the Appellant in the interest of justice. Hence, we direct

that status quo be maintained on the subject property in the instant matter till

the next date of hearing. The I.A. No. 955 of 2022 is disposed of with Notice to

the Parties.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical)

New Delhi 20th September, 2022 R. Nath/ I.A. No. 955 of 2022 in Company Appeal (AT) (Ins.) No. 655 of 2020