Mahesh Kumar Panwar vs Mega Soft Infrastructure Pvt. Ltd. (In ...

Mahesh Kumar Panwar .... Appellant

Vs

M/s Mega Soft Infrastructure Pvt. Ltd. (In Liquidation) & Anr. .... Respondents

Present: For Appellant: Mr. Arun Khatri, Advocate.

For Respondents:

ORDER

10.06.2019 The Appellant, Director of M/s Mega Soft Infrastructure

Pvt. Ltd. filed an application under Section 60(5) of the Insolvency and

Bankruptcy Code, 2016 (I&B Code) r/w Rule 11 of the NCLT for removal of

the 'Resolution Professional'/ 'Liquidator', Mr. Abhishek Anand, which was

rejected by the Adjudicating Authority (National Company Law Tribunal) New

Delhi Bench on 2nd May, 2019.

2. The Appellant/Directors were not co-operating with the 'Resolution

Professional'/ 'Liquidator', therefore, the 'Resolution Professional' invoked

power under Section 425 of the Company Act, 2013 (Companies Act) r/w

Sections 70 and 72 of the I&B Code and filed an application before the

Adjudicating Authority. It was alleged that despite directions by the

Adjudicating Authority from time to time, the Ex-Directors of the 'Corporate

Debtors' were willfully dis-obeying to co-operate. In fact, title deeds of the

Company Appeal (AT) (Insolvency) No. 617 of 2019 Page 1 of 4 property have surfaced, which were suppressed. One of them, Mr. Mahesh

Panwar (Appellant herein) was forced to handover the title deed pertaining to

the Noida land. He intentionally withheld the title deeds of the Baghpat

property. As the application was filed under Section 425 of the Companies

Act, which relates to initiation of contempt proceedings, it was alleged that

the contemnor has taken resort to legal proceedings by filing a collusive

petition for mandatory injunction in a desperate bid to avoid liquidation

proceedings. This was done to procure some order of the Court to justify

injunction over the property to keep it out of the arena of liquidation.

3. It appears that forensic audit was also conducted and its report

received. A copy of the same was given to the Ex-Directors including the

Appellant, who has the interest as well.

4. Contempt proceedings has been initiated by the Adjudicating Authority

against the Appellant and other Directors, in which non-bailable warrants

have been issued, as the Appellant and other Directors were not co-operating.

At the stage of liquidation, two applications were filed by Ex-directors,

including the Appellant being CA 493/2019 for recalling the non-bailable

warrants issued against the Directors, namely- Mr. Mahesh Kumar Pawar

(Appellant) and Mr. Ramesh Kumar Pawar (other Ex-Director). The

Adjudicating Authority having noticed their conduct and continued absence

from the Court and reluctant attitude in assisting the proceedings, the

application was dismissed by impugned order dated 22nd April, 2019.

5. Another CA being CA No.494/2019 was filed by the Ex-Directors

(including Appellant herein) questioning the working of the 'Liquidator'. The

Company Appeal (AT) (Insolvency) No. 617 of 2019 Page 2 of 4 Adjudicating Authority also dismissed the said application as the Ex-

Directors have no locus to file an application on behalf of others by impugned

order dated 22nd April, 2019.

6. Learned Counsel appearing on behalf of the Appellant submitted that

the Appellant and Directors always co-operated with the 'Resolution

Professional', but the 'Resolution Professional'/ 'Liquidator' was not co-

operating and therefore, they asked for his removal. It is further submitted

that the Appellant never prayed for removal of 'Resolution Professional'/

'Liquidator' but in the CA No.494/2019, the Appellant has requested for

handing over certain documents to the Appellant. However, we are not going

into the question of removal of 'Resolution Professional'/ 'Liquidator' nor

inclined to give any finding with regard to handover of any documents to the

Appellant.

7. In the present case, as we find that the Appellant has not co-operated

with the 'Resolution Professional'/ 'Liquidator' and is still not co-operating

and the Adjudicating Authority has already initiated the contempt

proceedings under Section 425 of the Companies Act and intends to order

for penal action under Section 70 and 72 of the I&B Code, we allow the

Appellant to raise all the issues before the Adjudicating Authority. If any

issue the Appellant intends to raise, he and other Directors should appear in

person and may file reply and the Adjudicating Authority thereafter will

decide whether the Appellant and the other Directors are liable for

punishment in terms of Section 425 of the Companies Act or their case is to

be referred to the Special Court for action under Section 70 r/w Section 72 Company Appeal (AT) (Insolvency) No. 617 of 2019 Page 3 of 4 of the I&B Code. The Appeal is dismissed with the aforesaid observations.

No cost.

[Justice S. J. Mukhopadhaya] Chairperson

[Justice A.I.S. Cheema] Member (Judicial)

[Kanthi Narahari] Member (Technical)

Ash/SK

Company Appeal (AT) (Insolvency) No. 617 of 2019 Page 4 of 4