Himachal Pradesh State Electricity ... vs Suraj Fabrics Industries Limited

Through Chairman. ...... Appellant No. 1

2. Himachal Pradesh State Electricity Board Limited

Through its Managing Director ...... Appellant No. 2

3. Superintending Engineer (OP.) Circle

HPSEB Limited Bilaspur H.P. ...... Appellant No. 3

All the aforesaid Appellants 1 to 3 are

Eing Represented by Appellant No. 3.

Versus

Suraj Fabrics Industries Limited

Having its Registered Office at Elegant Towers,

224-A. J.C. Bose Road, Kolkata-700017 and Its

Unit at Golatahi Industrial Area District Bilaspur,

H.P. Through its Managing Director. ...... Respondent

Present: For Appellant: Mr. Vinay Kuthiala, Sr. Advocate with Mr. Shaurya Vardhan Kuthiala, Advocate. For Respondent: Mr. G.P. Madaan, Mr. Aditya Madaan and Mr. Aadharsh Prakash, Advocates.

ORDER

(21st December, 2021) Justice Anant Bijay Singh;

I.A. No. 1657 of 2021 has been filed in the instant Appeal seeking

condonation of delay of 102 days in filing the instant Appeal. 2

2. From the perusal of the order dated 23.08.2021 the matter was heard

and the Respondent was directed to file Reply Affidavit on I.A. No. 1657 of

2021 (for condonation of delay) and I.A. No. 1658 of 2021 (for Stay) and the

main Appeal. Vide order dated 30.09.2021 the I.A. No. 1658 of 2021 for stay

of the impugned order was not pressed by the Appellants, the I.A. No. 1658

of 2021 was dismissed. On 10.12.2021 only I.A. No. 1657 of 2021 for

condonation of delay of 102 days was taken up. The Respondent appeared

and filed Rely Affidavit.

3. The Learned Sr. Counsel for the Appellants while pressing the I.A. No.

1657 of 2021 submitted that the instant Appeal i.e. Company Appeal (AT)

(Insolvency) No. 623 of 2021 has been filed on 03.08.2021 being aggrieved

and dissatisfied by the order dated 12.08.2020 passed by Ld. Adjudicating

Authority (National Company Law Tribunal), Kolkata Bench, Kolkata in I.A.

(IB) No. 601/KB/2020 in C.P. (IB) No. 1635/KB/2018 whereby and where

under the Application filed by Mr. Santosh Choraria, the Resolution

Professional prayed for approval of resolution plan of Suraj Fabrics Industries

Limited (Corporate Debtor) under Section 30(6), Section 31, Section 60(5) of

the Insolvency and Bankruptcy Code, 2016 along with Regulation 39(4) of the

Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for

Corporate Persons) Regulations, 2016 for the reason that the Resolution Plan

of M/s Sponge Sales India Private Limited, was approved by CoC with 100%

voting shares was approved by the Ld. Adjudicating Authority under

provisions of sub Section (1) of Section 31 of the Insolvency and Bankruptcy

Code, 2016.

Company Appeal (AT) (Insolvency) No. 623 of 2021 3

4. The Learned Sr. Counsel for the Appellant while pressing the I.A. No.

1657 of 2021 submitted that that a true copy of the impugned order was

communicated to the Appellant herein on 25.03.2021 and further, true copy

of the Resolution Plan dated 14.03.2020 by the Resolution Applicant, namely

M/s Sponge Sales (India) Private Limited was received by the Appellant on

25.03.2021. Further submitted that the Appellants were not a party to the

proceedings before the Hon'ble NCLT, Kolkata.

5. In para 3 of the I.A. No. 1657 of 2021 it has been mentioned that the

same were sent to various authorities and thereafter to the Law Department

for their comments and it consumed some time and thereafter, the instant

Appeal was filed on 03.08.2021 with Application for condonation of delay of

102 days, it may be condoned and the Appeal may be heard on merit.

6. The Respondent filed his Reply Affidavit to I.A. No. 1657 of 2021

through the Authorized Representative, Mr. Pankaj Khetan, authorized vide

Board Resolution dated 21.08.2021.

7. The Learned Counsel for the Respondent submitted that the Resolution

Plan was submitted by M/s Sponge Sales (India) Private Limited and passed

by the CoC with a 100% vote and has subsequently been approved by the

Hon'ble NCLT, Kolkata Bench vide order dated 12.08.2020.

8. It is further submitted that the present Appeal is barred by limitation

as the same has been filed with a delay of more than 356 days, whereas the

Appellants have erroneously stated that the delay is 102 days only.

Company Appeal (AT) (Insolvency) No. 623 of 2021 4

9. It is further submitted that the Resolution Professional vide email dated

17.08.2020 had already intimated the Director, Himachal Pradesh State

Electricity Board (for short HPSEB) that the Resolution Plan submitted by M/s

Sponge Sales (India) Private Limited has been duly approved by the Hon'ble

NCLT, Kolkata vide order dated 12.08.2020 in I.A. (IB) No. 601/KB/2020 in

C.P. (IB) No. 1635/KB/2018.

10. It is further submitted that the Appellants contention that they were

not aware of the impugned order is erroneous, false and rather misleading.

The Appellants have deliberately and consciously suppressed this fact in the

present Appeal to mislead this Tribunal. This act alone proves that the

Appellants failed to prefer the present Appeal within time and now distorting

the facts with a malafide intent to serve their own needs.

11. It is further submitted that vide email dated 17.08.2020, the Resolution

Professional also served a copy of the impugned order dated 12.08.2020 to

the Appellant and the same is annexed as Annexure R/2 at page 10 of the

Reply Affidavit.

12. It is further submitted that the Resolution Professional vide a second

email dated 03.09.2020 (Annexure - A-8 at page 161 of the Appeal Paper Book)

intimated the Appellants that the resolution proceeds against the admitted

claim of the Appellants have been disbursed. The email reiterated the previous

email that the resolution plan of M/s Suraj Industries Limited has been

approved by the Ld. Adjudicating Authority vide order dated 12.08.2020.

Company Appeal (AT) (Insolvency) No. 623 of 2021 5

13. It is further submitted that a single window application dated

11.11.2020 (Annexure R/3 of the Reply Affidavit) to facilitate approvals

required (including power connection) as per rules of the Directorate of

Industries, HP Government was filed by the Respondent (Suraj Fabrics

Industries Limited). The single window application dated 11.11.2020 was

approved by the monitoring Authority of the State Government at its meeting

held on 10.03.2021 and the In-Principle Approval has been conveyed to the

Suraj Fabric Pvt. Ltd. vide letter dated 23.03.2021 (Annexure R/4 of the Reply

Affidavit). Despite being aware of the CIRP, as evidenced by the claim filed in

Form B, abovementioned letter and emails dated 17.08.2020 and 03.09.2020

sent by the Resolution Professional to HPSEB, the Appellants have

conveniently failed to place these facts on record and have falsely made

submissions that the Appellants was not aware of the impugned order.

14. It is further submitted that the amount as provided for under the

Resolution Plan stood transferred to the account of the Appellant as early as

03.09.2020 but the Appellant failed to challenge the impugned order

approving the Resolution Plan at an earlier stage when they received the

approval order or payment intimation vide emails dated 17.08.2020 and

03.09.2020 respectively. The Appellants failed to challenge the impugned

order, they preferred the instant Appeal at the belated stage. Therefore, there

is not merit in the instant Appeal and no case for condonation has been made

out by the Appellants in para 3 of their aforesaid I.A. They have given bland

statement the impugned order sent to various authorities and thereafter to

the Law Department for their comments, so no case for condonation of delay

Company Appeal (AT) (Insolvency) No. 623 of 2021 6

is made out and the I.A. No. 1657 of 2021 may be dismissed and

consequently, Appeal may be dismissed.

15. After hearing the parties and going through the record and also the

submissions, we are of the view that the Appellants had the knowledge of the

impugned order dated 12.08.2020 passed by Ld. Adjudicating Authority

(National Company Law Tribunal), Kolkata Bench, Kolkata in I.A. (IB) No.

601/KB/2020 in C.P. (IB) No. 1635/KB/2018 from the email dated

17.08.2020 sent by the Resolution Professional of Suraj Fabrics Industries

Limited (Respondent) way back of 17.08.2020 (Annexure R/2 at page 10 of

the Reply Affidavit filed by Respondent) and the instant Appeal has been filed

on 03.08.2021 and no sufficient explanation for condonation of delay have

been made out in the instant Appeal.

16. In view of the above, the I.A. No. 1657 of 2021 is dismissed

consequently, the instant Appeal is also dismissed.

17. Registry to upload the order on the website of this Appellate Tribunal

and send the copy of this order to the Ld. Adjudicating Authority (National

Company Law Tribunal), Kolkata Bench, Kolkata, forthwith.

[Justice Anant Bijay Singh] Member (Judicial)

[Ms. Shreesha Merla] Member (Technical) New Delhi 21st December, 2021 R. Nath.

Company Appeal (AT) (Insolvency) No. 623 of 2021